
    In the Matter of the Application of the City of New York, Respondent, to Open Avenue D in the Borough of Brooklyn. George Fulling, Appellant.
    
      Matter of City of New York (Avenue D), 122 App. Div. 416, affirmed.
    (Submitted May 20, 1908;
    decided June 2, 1908.)
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered November 22,1907, which affirmed an order of Special Term confirming the report of commissioners of estimate and assessment in the above-entitled proceeding.
    
      Charles S. Taber for appellant.
    
      Francis K. Pendleton, Corporation Counsel (Theodore Connoly, John P. Dunn and Thomas C. Blake of counsel), for respondent.
   Per Curiam.

The order appealed from is affirmed, with

costs. The question whether the commissioners exceeded the limitation prescribed by section 980 of the charter by assessing the property benefited at more than one-half its value, is not passed upon because not presented by the record. The appellant should have moved to send the report back to the commissioners with instructions that they specify whether their valuation was made as of the date when title vested or as of the date of their report.

Cullen, Ch. J., Gray, Vann, Werner, Willard Bartlett, Hiscock and Chase, JJ., concur.

Order affirmed.  