
    In the Matter of the Application of The City of New York, Respondent, Relative to Acquiring Title, etc., for the Opening and Extending of Thayer Street, etc., from Broadway to Nagle Avenue; and Arden Street, etc., from Broadway to Nagle Avenue, in the Twelfth Ward, Borough of Manhattan, City of New York. Calendar Realty Company, Appellant.
    First Department,
    February 3, 1911.
    Municipal corporations — street opening, city of New York—assessment ' for benefit received.
    In valuing land for assessment for benefits received on a street opening in the city of New York the commissioner of assessment may take into consideration the enhanced value of the property by reason of the improvement, but cannoi assess at a value greater than one-half of such value.
    Ingraham, P. J., dissented, with opinion. *
    Appeal by the Calendar Realty Company 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 28th day of November, 1910, confirming a supplemental report of the commissioner of assessment herein.
    
      Samuel Untermyer and Abraham Benedict, for the appellant.
    
      Joel J. Squier, for the respondent.
   Dowling, J.:

This proceeding was before the court for review upon an appeal from an order confirming the reports of the commissioners of estimate and of the commissioner of assessment, and while the order was affirmed as to the former, it was directed that the latter report be returned to the commissioner of assessment for further return, the court saying (138 App. Div. 255): “ We think the court should be advised of the date taken by the commissioner of assessment for his determination of the value, for- if it was as of the date of the estimate for damages, we think the report must, upon this record, be .sent back to the commissioner for readjustment of the assessment for benefit.” That course having been followed the ■ commissioner of assessment reported that he valued each piece of property assessed by him as of the date of the report, to wit, May 24, 1909, and that in making such valuation he took into consideration the enhancement in value of such property by reason of this improvement, and that in no case did the assessment for benefit exceed one-half the value of the property as valued by him.

Originally the Consolidation Act (Laws of 1882, chap. 410, §981) ' provided as follows : “ Commissioners for making estimates and assessments for any improvements, authorized by law to be assessed upon the owners.or occupants of houses and lots, or improved and unimproved lands, shall in no case assess any house, lot, improved or unimproved lands more than one-half the value of such house, lot, improved or unimproved land as valued by the tax commissioners.” The effect of this was to prevent the commissioners from taking into consideration in valuing land for assessment purposes the enhanced value thereof caused by the new conditions ■ which the improvement itself would produce. To meet this situation when the Greater New York charter was enacted it provided (Laws of 1897, chap. 378, § 980, as amd. by Laws of 1901, chap. 466 ; Laws of 1905, chap. 299 ; Laws of 1906, chap. 658, and Laws of 1909, chap. 394): “ The said commissioner of' assessment shall in no case assess any house, lot, improved or unimproved lands, more than one-half' the value of such house, lot, improved or unimproved land, as valued by him.” This ,is no restriction upon the manner in which the commissioner of assessment shall arrive at the values which he determines, and he is .not required to take the valuation of the commissioners of estimate as his own, any more than he is required to adopt the valuation of the tax commissioners. The question whether the commissioner had the right, in determining the value of the property sought to be assessed, to take into consideration the enhanced value of the land due to the improvement itself, was decided in Matter of City of New York, Avenve D (122 App. Div. 416), wherein it was said : “ It is claimed by the appellants that the commissioners violated this provision of the charter by imposing an assessment on the lands taken greater than one-lialf their value. If the lands not taken are to be figured at the same rate per square foot as fixed by the award for the land actually taken for the street extension, then the contention of the appellants is right. * , * * The respondent contends that there is no warrant in law for the contention that the commissioners must place the same value upon the lands abutting Avenue D as upon that part of the tract taken for opening that street. On the other hand, it is urged that the instant the title to Avenue D was transferred to the city the abutting lands took a new and additional value, which the commissioners were justified in considering in. fixing the value of the lands to be assessed. It is quite manifest that the commissioners must have pursued this course to justify the assessment actually made. * * * ' The section above quoted limiting an assessment to not 'more than one-half the value of such house, lot, improved or unimproved land, as valued by them ’ is silent as to the method which the commissioners, should employ in fixing tlie valuation — whether as determined before or after the street extension had been made. * * * We, therefore, conclude that commissioners in determining the value of the parcels untaken must determine and fix that value on what the parcels are worth with the street extension made, and the title to the land within the street lines vested in the city of New York. The commissiohers, therefore, having been lawfully justified in pursuing this method, and having certified in their report that they have followed and complied with the directions of the statute under which they acted, and limited 6 our assessment for benefit to one-half the value of the lots or parcels of land lying within said area or district of assessment as valued by us, pursuant to the provisions of Section 980 of the Charter of the City of New York,’ and nothing appearing in the record to the contrary in this case, under the authority of Matter of Whitlock Ave. (178 N. Y. 421) we conclude the order appealed must be affirmed, with costs.” So in Matter of Whitlock Ave. (51 App. Div. 437) the court held: “An argument has been made by the respondents respecting the unconstitutionality of the provision of the law which would allow, in the making of an assessment for benefit, the taking into consideration of any benefit accruing after the date at which the title vested in the city; but we regard this case as falling within the recognized principle of law, that assessments for benefit in improvements of this character are within the general power of- taxation. (People ex rel. Griffin v. Mayor, 4 N. Y. 419; Matter of Van Antwerp, 56 id. 261; Litchfield v. Vernon, 41 id. 123.)”- These decisions are. in harmony with the earlier authorities of Matter of Mayor (46 App. Div. 52) and Matter of East One Hundred & Seventy-fifth Street (49 id. 114).

The order appealed from'should, therefore, be affirmed, with costs. '

McLaughlin, Clarke and Miller, JJ.,.concurred; Ingraham, P. J., dissented.

Ingraham, P. J. (dissenting):

This proceeding was before this court on a former appeal (138 App. Div. 252) when the- matter was sent back' to the commissioner for a supplemental report. The commissioner having made the-return required, it was confirmed at Special Term, ánd the property owners appeal.

The question arises under section 980 of the charter of the city of New York (Laws of 1901, chap. 466, as amd. by Laws of 1909, chap. 394). That section provides: “ The' commissioner of assessment shall in making his estimate and assessment of the valué of the benefit and advantage of the said improvement assess any and all such lands, tenements, hereditaments and premises within the area or areas of assessment fixed and prescribed by the board of estimate and apportionment as tile area or areas of assessment for benefit in proportion to the amount of benefit received. * * •* The said commissioner of assessment shall in.no case assess any house, lot, improved or unimproved lands, more than one-half the value of such house, lot, improved .or unimproved land,'as valued by him.”

Upon the former appeal the report of the commissioner was sent back to him for his determination as to the date at' which he valued the property. He has now reported that he valued each piece, of property assessed by him as of the date of his report, to wit, May 24, .1909, and, in making such valuation, that betook into consideration the enhancement in value of such property by reason of this improvement and that in no case does the assessment for benefit exceed one-half the value of the property assessed as valued by him.

I do not think that under section 980 of the charter the commissioner was authorized in valuing the property within the area of assessment to consider what' it will be worth after the improvement fof which the assessment is imposed is completed. Before the improvement the property must be presumed to have had a definite value. That the property would be benefited by the improvement must also.be assumed and such benefit was to be paid for by imposing an assessment upon the property so benefited. The amount of that assessment had to be determined by the- commissioner of assessment, but he was prohibited from imposing upon any piece of property an assessment in excess of one-half of the' value of the property. It seems to me that it is a violation of this provision to increase the value of the property which is to be 'assessed as it was at that time, by adding to it the increased value caused by the improvement for which the property is to be assessed. What the commissioner has done is to value the property, add to that value the improvement for which the property is bhargeable and which its owner has to pay for, and fix that as the value of the property at the time the assessment is made. I think the value of the property when the commissioner makes the valuation is not as benefited by the actual improvement for which the owner still has to pay, but is the value of the property without such improvement; and I, therefore, think the report should be sent ■ back to the commissioner to value the property as of the time he made the assessment, and not as of the time when the assessment imposed upon it has been paid.

The question here presented was not before the court in Matter of Mayor (46 App. Div. 52). What we held there was that the value must be fixed by the commissioners at the time the assessment for benefit was imposed upon the property, and not at the time when the commissioners fixed the value of the property to be taken for the improvement. I appreciate the fact that a different view was taken by the Appellate Division in the Second Department in Matter of City of New York, Avenue D (122 App. Div. 416); but on appeal to the Court of Appeals in that case (192 N. Y. 575), the order -was affirmed upon the ground that tire question whether the commissioners exceeded the limits prescribed' was not presented by the record, the' Court of Appeals thus leaving the question now under consideration open.

I dissent, therefore, from an affirmance of this order..

Order affirmed, with ten dollars costs and disbursements.  