
    Monroe County, App’lt, v. City of Rochester et al., Resp’ts.
    
      (Supreme Court, General. Term, Fifth Department,
    
    
      Filed, June 21, 1895.)
    
    1. Municipal corporation — Assessments—Inequalites,
    A street agseaspient wijl be, set aside for-inequality, where the assessors, in makipg tfle assessment, adopted some erroneous,rule or principle, which resulted in great injustice to plaintiff.
    2. Same — Remedy.
    In such, case, the court has, in an action to set. asidje the assessment, power to correct the error, but would he powerless to correct it in this form of; action/ in ease the inequality resulted simply from an error of judgment on the part of the assessors.,
    Appeal from a judgment,, dismissing the. complaint.
    
      John Desmond, for app’lt;, A. J. Rodenbach, for resp’t.
   Lewis, J.

— The common council of the city of Rochester, in the year 1881, took proceedings for opening a street in that city, running east and west from State to Sophia streets, known as “Church street.” The common council duly designated a portion of the city deemed to be benefited by the laying out of the street, and ordered an assessment to be made upon the portion of the city so designated, to pay the expenses of the improvement. The assessment was accordingly made, which was set aside by the'judgment of the supreme court, because of irregularities of the' assessors in making the assessment. A reassessment was thereafter made by the direction of the common council. The plaintiff being the owner of a parcel of land which was assessed for said improvement, brought this action to vacate and set aside the assessment, because of various alleged errors and irregularities in the proceedings of the common council, and especially errors and irregularities of the assessors in making the assessment. The action was tried at Monroe special term, and resulted in the dismissal of the plaintiff's complaint, and the plaintiff appealed from judgment to this court. The trial court did not deem any of the alleged errors of sufficient importance to justify setting the assessment aside. Many errors and irregularities in the proceedings and determinations of the assessors were charged in the complaint, and litigated upon the trial. We agree with the conclusions of the trial court, with one exception.

We find from an examination of the case, evidence of such a gross and excessive assessment of the plaintiff’s property, as compared with the assessment of the other property assessed, that our minds are led to the conclusion that there must have been some inexcusable error committed by the assessors in making the assessment, and a perusal of the testimony, of Mr. Munn, one of the persons who made the assessment, and the only one of the assessors who was interrogated as to the rule or principle adopted in making it, strengthens and confirms the impressions made by the examination of the other evidence in the case. Plaintiff’s property consists of a lot iron ting upon the southerly side of West Main street. It is bounded on the west by Fitzhugh street on east by Irving place and on south by property of the city. It is 140.08 feet in width, and 264 feet in depth, and was proven to be worth about $250,000 .at the time of the trial. At the time the assessment was made the evidence tends to show that it was worth about $150,000, and at this same time there was upon the lot an old courthouse, which has since been torn down, and a new courthouse is ■ being constructed thereon. The sum directed to be reassessed upon all the property in the district, for the improvement, was $185,000. Of this sum the plaintiff’s property was assessed $16,082.40. The property directly east of plaintiff’s lot, on the other side of Irving Place, bounded upon the southerly side by West 'Main, 165 feet, and on the west by Irving Place, on the east-by Exchange street, and 325 feet in depth, which concededly was of much greater value than plaintiff’s lot, and an equal distance relatively from Church street, was assessed at only $8,827.12. A like inequality appears in the assessment upon the block adjoining the plaintiff’s lot on the west, across Fitzhugh street. Property across West Main street from plaintiff’s lot, which fronts upon Main street 162 .feet, and upon North Fitzhugh street 143 feet, and is occupied by the Powers hotel and stores, with its improvements, was worth twice as much as plaintiff’s lot, was assessed about $6,000. The property known as “Powers’ Block,” upon the corner of West .Main and State streets, with a frontage on West Main of 165 feet, and 171 on State street, and the width of Main street nearer Church street than plaintiff’s lot, and which was valued at more than $1,000,000, was assessed at a little more than $7,000. Many •other instances of flagrant inequalities in the assessments appear in the case. Our attention has not been directed to another piece •of property in the entire district which is assessed at anything like, in amount, the plaintiff’s assessment, relatively. The assessments ■upon lots, which, by the opening of Church street, were given a frontage upon the street, appear to be almost nominal in amounts, ■compared with the assessment in question, while plaintiff’s lot is 455 feet distant from Church street.

Mr. Munn was called as a witness, and questioned as to the plan or rule adopted by the assessors in making the assessment. Here-plied that it was a long time since the roll was made out, and that he could not state positively in regard to it. When asked to give some reason for the large assessment on plaintiff’s property, he said that they divided the property into grades, and laid the assessments at amounts per foot for the different grades, that they took into account mainly the frontages the property had upon streets, and that in the case of the courthouse property they regarded the lot as having three frontages, — one on Main, another on Fitzhugh, and a third on Irving Place; and when confronted with the fact that even then the amount of the assessment would ■not have been produced, he said that they might have arbitrarily made some additions to the frontages in the case of the plaintiff’s lot. It is quite apparent from the testimony of Mr. Munn that the assessors did not adopt any rule in making the assessment in question, but arbitrarily fixed the amount, and that without the exercise of their judgment in the premises. The following questions propounded to him, and his answers thereto, tend quite ■strongly to establish this conclusion:

“Q. What is there, in your reason, that tells you the courthouse property, smaller frontage by twenty-five feet on Main street, ■receives more than twice the amount of benefits this other block has received (referring to the block on the other side of Irving Place)? A. The assessed valuation of' the courthouse. The estimated valuation of the courthouse when the first assessment for •Church street was made was $150,000, and now the board of supervisors have been trying to sell it for $250,000, and the increase in price is based principally upon the opening of Church street, •and the location of the government building; and I believe the law allows the assessors to place an assessment and benefit to the increase of property. Q. This other property is relatively the same •distance from Church street, and must, on the same principle, have increased in value, must it not? A. I don’t know, I haven’t looked into it. I haven’t, got it in. my mind. I had this' in my mi'nd principally-because that - was, in preference to the county building.- Q„ Why is it' that the-'smaller "piece of property has increased in any larger amount than the larger' piece? A. Well, that is our judgment, that is - all. Q. You haven’t any reason to-offer ? A. That is the reason*- that is all. Q. Take the Powers’ Block,- which has a frontage of 169 feet on Main- street; it is 100' feet nearer to Church street, it is 171 feet on State strees, it is valued for more than $1,000;000,. and it is assessed at a- little over $7,000 ; it has quite-as marly square feet, — -nearly as many square feet as the courthouse property. Explain upon- what rule or method you discriminated in that way between those pieces of' property. A. We assessed-according to benefits. Q-. What method, of reasoning- led you' to the conclusion that the courthouse1 property received $16,000, while this block- here of property received1 only $7,000? A. I have no-answer to offer to that.”

The answer of this witnesss- to questions' propounded to him as-to the assessments upon property in the' immediate vicinity of' Church street, and some of- it fronting, upon that street, and which were, as compared with the: assessment in question, absurdly small; iu amount; were equally unsatisfactory. That th'e assessment of the plaintiff’s property,was, relatively, grossly.unjust'-an'dunequal cannot be doubted by any one who examines the evidence. If this had resulted simply from an- error- of judgment on the'- part of the-assessors, we would be, powerless t'a correct it in' this -form- of action. Cooley, Tax’n (1st ed.) 533; Guest v. City of Brooklyn, 69 N. Y. 506 ; Hoffeld v, City of Buffalo, 130 N. Y. 387 ; 42 St. Rep. 379. We feel quite sure that improper considerations1 were -permitted .to enter.into the mi-ndh of the assessors iri making the assessment They must have adopted some' erroneous rule of - principle which resulted in this great injustice to the plaintiff, and" that, being, so we have the power here to correct the error, Elwood v. City of Rochester, 48 Hun, 102 ; 6 St, Rep: 132."

The judgment' appealed from should be reversed,- and a neW trial, granted, with costs to- abide the final award of- costs:

All concur.  