
    In the Matter of the Application of the City of New York, Appellant, Relative to Acquiring Title, etc., for the Opening and Extending of West One Hundred and Fifty-seventh Street, Between Broadway and Audubon Place, in the Twelfth Ward, Borough of Manhattan, City of New York. Adolph Lewisohn, Respondent.
    First Department,
    April 4, 1912.
    Mew York city — condemnation of lands — assessment for benefits — appeal — evidence —determination of benefit of improvement.
    Proceeding by the city of Mew York to acquire a triangular parcel' of land at the northerly junction of Broadway and Audubon place in said city. Appeal from an order denying a motion to confirm the report of the commissioner of assessment with respect to benefits. Evidence examined, and held, that the assessments should remain as made by the commissioner of assessment, pursuant to the authority conferred upon him by section 980 of the Greater Mew York charter.
    A commissioner of assessment is in a better position than an appellate court to determine the relative benefit of an improvement to respective parcels of land within the area of assessment.
    Appeal by the City of New York from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of July, 1910, confirming the report of commissioners of estimate herein and denying the motion of the city to confirm the report of the commissioner of assessment and returning said report to the said commissioner of assessment for revision and correction.
    
      John J. Kearney [Joel J. Squier with him on the brief], for the appellant.
    
      Edward W. Murphy [Francis P. O’ Connor with him on the brief], for the respondent.
   Laughlin, J.:

The notice of appeal is from the order confirming the report of the commissioners of estimate, and denying a motion to confirm the report of the commissioner of assessment; but it is stated in the appellant’s brief that the appeal is only from that part of the order refusing to confirm the report of the commissioner of assessment with respect to benefits, and the only questions argued relate to the latter report.

The proceeding was brought for the purpose of acquiring a single triangular parcel of land owned by the respondent at the northerly junction of Broadway and Audubon place, and lying immediately to the south of the northerly line of West One Hundred and Fifty-seventh street continued, and lying wholly within the lines of West One Hundred and Fifty-seventh street, if the northerly line thereof were so continued. Before this triangular parcel was acquired by this proceeding it afforded the owner a frontage of forty-nine and forty-seven one-hundredths feet on Audubon place and thirty-seven and three ónehundredths feet on Broadway; but it afforded no frontage on West One Hundred and Fifty-seventh street. With this parcel appropriated for West One Hundred and Fifty-seventh street it gives the owner’s remaining lands a frontage of thirty-two and eighty-one one-hundredths feet on West One Hundred and Fifty-seventh street and less frontage on the other two streets. The commissioners awarded for the parcel taken, which contained six hundred and seven and five-tenths square feet, the sum of $9,720. The area of assessment for benefits is not reviewable, nor is it sought to review it, in this proceeding. That area is a rectangle, and it embraces the lands upon either side of West One Hundred and Fifty-seventh street, extending back ninety-nine and ninety-two .one-hundredths feet, and upon the easterly side of Broadway, extending back one hundred feet, and the remaining lands of the respondent on the northerly side of One Hundred and Fifty-seventh street, bounded by Broadway and Audubon place and the northerly line of the area of benefits and two other parcels on the westerly side of Audubon place, bounded by Audubon place, One Hundred and Fifty-seventh street and the exterior lines of the area of benefits. The remaining lands of the respondent within the area of benefits are assessed as two parcels, known as benefit parcels Nos. 4 and 5. No. 4, which has or is to have a frontage on West One Himdred and Fifty-seventh street of thirty-two and eighty-one one-hundredths feet, and extends back on the westerly line of Broadway ninety-nine and ninety-two one-hundredths feet, and is bounded on the north from Broadway westerly one hundred feet by the northerly line of the area of benefits, and on the west by a line running parallel with Broadway for a distance of twenty-four and twelve one-hundredths feet, and then by the northeasterly line of Audubon place for the distance of one hundred and one and thirty-two one-hundredths feet, is assessed $7,578.54; and No. 5, which is a triangular parcel lying between No. 4 and Audubon place, and bounded oil the north by the northerly line of the area of benefit, is assessed $100.17.

The respondent contends that these assessments are excessive, and he relies solely in support of his contention upon the location and area of the lands assessed, a comparison between the amounts assessed on his lands and on the other parcels, upon an inspection of the map, upon a stipulation to the effect that he acquired the parcel taken after he had acquired and improved the other two parcels which are assessed, and that the improvements on his remaining parcels are not adequate, and that it would be more profitable to him if part of the parcel taken herein could be utilized by him in permanently improving his remaining property on account of the additional floor space that might be thus afforded. The court declared the assessments on the lands of the respondent excessive, and remitted the matter to the commissioner to revise them.

It is a reasonable inference that the lands of the respondent, . on account of having this new frontage on the northerly side of West One Hundred and Fifty-seventh street, will be benefited by the improvement. It is contended by the learned counsel for the respondent that since the apex of the triangular parcel acquired by this proceeding was in West One Hundred and Fifty-seventh street, his client had, in fact, a frontage on West One Hundred and Fifty-seventh street greater than that which he now has. If it could be said that his lands had any frontages on that street, they were, at most, diagonal frontages,. and they were on a separate parcel, the title to which . was acquired separately and subsequent to the time respondent acquired title to the other parcels. His remaining parcel 4, upon which the principal assessment is levied, had no frontage, diagonal or otherwise, on One Hundred and Fifty-seventh street, and was cut off therefrom by the separate parcel which has been acquired by the city. The stipulation to the effect that it would be profitable to the respondent, if, in improving his remaining lands he could utilize in connection therewith part of the parcel taken, is of no importance. Presumably he has been liberally compensated for the parcel which the city has acquired, and no question with respect to the adequacy or excessiveness of thé award is presented for review. The commissioner of assessment found respondent’s remaining parcel 4, no part of which was taken, with a new frontage on One Hundred and Fifty-seventh street, and it was, therefore, presumably very materially benefited by the improvement. Manifestly the commissioner of assessment was in a better position than is the court on this record to determine the relative benefit to the respective parcels within the area of assessment, for he viewed the premises and was in a position to determine by personal observation the probable effect of the improvement in increasing the value of the respective parcels of land. He determined that the parcel of land diagonally across from the improvement and at the southeasterly intersection of Broadway and West One Hundred and Fifty-seventh street was benefited $250.31; that the premises directly opposite the improvement and at the northeasterly corner of Broadway and West One Hundred and Fifty-seventh street, having a frontage of seventy-five feet on the latter street, were benefited $277.87; that the lot next easterly thereof, having a frontage' of twenty-five feet on West One Hundred and Fifty-seventh street, was benefited to the extent of $22.50,; that the parcel directly opposite the improvement on the west and across Audubon place was benefited to the extent of $1,201, and that the parcel diagonally opposite the improvement and on the southerly line of West One Hundred and Fifty-seventh street and easterly side of Audubon place was' benefited to the extent of $1,551.79. There is no basis shown by the record upon which we can say that the commissioner adopted an erroneous principle, or that' the assessment on either of the respondent’s parcels is manifestly excessive, and, therefore, the assessments must remain as made by the commissioner of assessment, pursuant to the authority conferred upon him by section 980 of the Greater New York charter. (See Laws of 1901, chap. 466, § 980, as amd. by Laws of 1906, chap. 658, and Laws of 1909, chap. 394; Matter of Mayor [East 176th Street], 85 App. Div. 347; Matter of City of New York [Clinton Avenue], 106 id. 31; Matter of City of New York [Spofford Avenue], 126 id. 740.)

It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and the objections to the report of assessments overruled and the report confirmed.

Ingraham, P. J., Clarke, Scott and Miller, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, objections overruled and report confirmed.  