
    Matter of the Application of the City of New York, Relative to Opening West Two Hundred and Fifty-ninth Street, from Broadway to Riverdale Avenue, Twenty-fourth Ward.
    (Supreme Court, New York Special Term,
    September, 1902.)
    New York city — Its lands may be assessed for benefit, but not more than other lands.
    Under the charter of the city of New York (L. 1897, ck. 378, § 995)' its lands may be assessed for benefit in the same manner as those of other owners but, where no part of an assessment for a street opening is assessable on the city at large, an assessment cannot stand where park lands of the city, not fronting on the street and only indirectly benefited, are assessed according to their area much more than other lands which by the improvement have acquired new or increased easements of light, air, and access.'
    Objections to the report of the commissioners of estimate and assessment.
    George L. Rives, Corporation Counsel (John P. Dunn, of counsel), for city.
    John C. Shaw, for objector Forster.
   Steckler, J.

There are two objectors to the report of the commissioners in this proceeding for the opening of West Two Hundred and Fifty-ninth street, (1) the city, being-the owner of Van Oortlandt Park, and (2) Frederick P. Forster, the owner of damage Ho. 55. The street was opened between Broadway and Riverdale avenue. Between Broadway and Huxley avenue there was a solid opening, and west of the latter avenue the improvement consisted of .a widening on either side of Rock street. ■

1. In their preliminary report the commissioners limited the area of assessment within the park boundaries to that portion of the park fronting directly on Broadway and to a depth of 100 feet within said boundaries. The final report increased this area 200 feet farther east, making an area of 300 feet of the park land parallel to Broadway assessed for benefit, and thus increasing the assessment upon the city property from $5,005.26 to $7,572.95. The city objects that the assessment is excessive and out of proportion to the other assessments for benefit.

The lands of the city of New York are subject to assessment for benefit in the same manner as the lands of other owners and proprietors (Greater New York Charter, original and revised, sec. 995), the assessment being levied, not directly, but in gross. Ho part of the park fronts on the improvement. It could only be assessed for benefit not because it derived new or increased easements of light, air and access by reason of the acquisition of title to the street, but by reason of such indirect benefit as would come to it from the fact that the street was opened in its. proximity. Presumptively it could not be assessed for benefit to a greater degree than other property in the vicinity similarly situated; and the commissioners might perhaps, in their discretion, have assessed the park lands less in proportion than property unrestricted in its use and title (Matter of Degraw St., 18 Wend. 568; Matter of Mayor, 11 Johns. 77; People ex rel. Howlett v. Mayor, 63 N. Y. 291).

An examination of the record shows that property opposite the park and on the west side of Broadway, exclusive of that which derives a new frontage on West Two Hundred and Fifty-ninth street, is assessed at an average of about $13 a city lot, while the park land is assessed at an average of $40 a city lot. A comparison of the area of assessment over the park property, 300 feet in width from south to north, with a similar area of assessment on the west side of the improvement shows that the westerly area is assessed at the rate of about $7 a city lot as against $40 a city lot for the park property. In their preliminary estimate the commissioners assessed the park land at the rate of $85 a city lot, and they assessed the lots on Rock street, which was widened ten feet on either side, so as to malee the new street between Huxley and Riverdale avenues, at the same figures. In other words, they assessed the park, which is only indirectly benefited, to the same degree as they assessed the Rock street property, which is directly benefited by obtaining easements of light, air and access over ten feet of additional land and a new street leading directly to Broadway. In their final report, as before stated, the commissioners increased the easterly area of assessment over 200 feet farther, thus increasing the assessment on the park property from $5,005.26 to $7,572.95, and half of the additional assessment they applied in reduction of the assessment against the solid opening between Broadway and Huxley avenue, and the remaining half in proportionate reduction of the assessments upon the Rock street frontage.

As the proper authorities determined that no proportion of the cost and expense of the proceeding should be assessed against the city at large, but that all the expense should be assessed on the property benefited within the area of assessment, a consideration of the facts above stated leads irresistibly to the conclusion that the assessment upon the park property is excessive and out of proportion to the other assessments for benefit, for which reasons the city’s objections must be sustained.

2. The objection of the property owner, Frederick P. Forster, is that the assessment upon his property is inequitable. This objector owned the property between Broadway and Huxley avenue, and through that land the new street was laid so as to connect with Rock street, as widened, on the west. Mr. Forster was awarded for damages $10,208.38, and assessed for benefit in the sum of $12,278.65, and it is contended that the amount of the award together with that proportion of the costs of the proceeding which the award bears to the aggregate award for the entire improvement was assessed on his property to the depth of 100 feet on each side of the new street.

While it is a fair rule in these proceedings to make each block pay for the land taken for such block (In re Rogers Ave., 22 N. Y. Supp. 27), that rule is not an inflexible one. Moreover, this proceeding is distinguished from Matter of Grant Ave. (34 Misc. Rep. 724) and Matter of Townsend Ave. (35 id. 65), for those were cases where the conditions existing between the various streets or avenues were similar, while in this matter there was a solid opening through Mr. Forster’s property, and the rest of the improvement consisted merely in the widening of Rock street. And the commissioners have found that the objector’s land was actually benefited not less than to the extent of a full one-third of the entire 'cost of the proceedings, including awards and expenses, and has trebled in value as a result of the improvement — findings which seem to be amply sustained by the record.

It is true that section 992 of the charter provides that the owners of all the land in an entire block may, without compensation and at their own expense, convey'title to the city, and thus escape .the payment of assessments. But the objector did not cede the land to the city, and having taken the risk of the condemnation proceedings, the court does not, in view of the express finding of the commissioners as to the benefit conferred by the improvement on his property, feel warranted in disturbing the commissioners’ decision.

Report sent back for revision and correction of the assessment against the city.

Report sent back for revision and correction.  