
    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 Sixty-third Street, between Amsterdam Avenue and St. Nicholas Avenue, in the Twelfth Ward, Borough of Manhattan, City of New York. Henry E. Black and Others, as Executors and Trustees under the Last Will and Testament of Robert E. Westcott, Deceased, Respondents.
    First Department,
    June 28, 1912.
    Municipal corporations — opening and extending street in Mew York city — assessment of benefits — duty of commissioner — assessment on remaining lands—new frontage — review of assessment.
    Although under the Greater Mew York charter the commissioner of assessment is one of the three commissioners who make the awards, he is required to act as a commissioner to assess the benefit as if he had taken no part in making the awards, or as if the awards had been made by other commissioners.
    The assessment on the remaining land of persons whose lands have been taken for street purposes should be the same as if none of them land had been taken in the proceeding.
    Where the commissioner of assessment .finds that remaining lands have a new frontage, such lands must be benefited to some extent, and where the record on appeal merely presents the assessments, the court cannot say that the remaining lands were not benefited by the amount for which they have been assessed or that the commissioner proceeded on a wrong rule of law.
    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 27th day of June, 1910, confirming the report of commissioners of estimate and' denying a motion to confirm the report of the commissioner of assessment and returning said report to the said commissioner for revision and correction.
    
      John J. Kearney [Joel J. Squier and George E. Draper with him on the brief], for the appellant.
    
      James A. Deering, for the respondents.
   Laughlin, J.:

On the 8th day of March, 1907, West One Hundred and Sixty-third street had been acquired for and was in use as a public street both easterly and westerly of a triangular block of land bounded on the north by West One' Hundred and Sixty-fourth street, on the east by Amsterdam avenue and on the west by St. Nicholas avenue, and with its apex just north of West One Hundred and Sixty-second street; and on that day the board of estimate and apportionment duly determined to acquire the lands necessary to continue One Hundred and Sixty-third street through this triangular block and determined the area for assessment of benefit, and instructed the corporation counsel to take the necessary proceedings by applying for the appointment of commissioners of estimate and a commissioner of assessment. . The three commissioners of estimate duly determined the amounts to be awarded to the owners of the two parcels taken, and them report was duly confirmed and no appeal has been taken therefrom. The respondents owned that part of said triangular block of land lying southerly of the middle line of West One Hundred and Sixty-third street continued through the block, and were duly awarded for the northerly 25 feet thereof acquired herein and have acquiesced therein. The area of assessment for benefit embraced the land bounded by lines about 100 feet northerly and southerly of West One Hundred and Sixty-third street, and on the east by a line 100 feet east of Edgecombe avenue, and on the west by a line 100 feet west of Broadway. The remaining lands of the respondents which were within the area' of assessment for benefit appear to have been subdivided into four lots extending easterly and westerly between St. Nicholas and Amsterdam avenues. They were separately assessed, but in the aggregate the amount of the assessments thereon is-$18,577.35.

The theory upon which the court has refused to confirm the report and has returned it to the commissioner of assessment is, that considering the award made to the respondents the assessments were excessive. As we had occasion to point out in Matter of City of New York, West 157th Street (150 App. Div. 131) the commissioner who makes the assessment for benefit acts separately and wholly independent of the commissioners in making the awards. The commissioner of assessment enters upon his duties with the awards made and the total amount to be assessed upon the prescribed area conclusively fixed and determined. The duty devolves upon him of determining the amount of benefit to every parcel of land within the area of assessment for benefit and assessing it therefor, or in other words of apportioning the total amount among the parcels in proportion to the benefits received. Although under the law as it now exists in the city of Greater New York the commissioner of assessment is one of the three commissioners who make the awards (Greater N. Y. Charter [Laws of 1901, chap. 466], § 973, as amd. by Laws of 1906, chap. 658, § 3, and Laws of 1910, chap. 336, § 2), yet, that is quite immaterial* for he is required to act as a commissioner to assess the benefit as if he had taken no part in making the awards, or as if the awards had been made by other commissioners. The assessment on the remaining lands of the respondents should be the same as if none of their lands were taken in the proceeding. The commissioner of assessment found that the respondents’ remaining lands have a new frontage oh West One Hundred and Sixty-third street of about 128 feet. It is manifest that each of the remaining lots Of the respondents’ lands is benefited to some extent by the improvement, and it cannot be said on the record before the court, which merely presents the.assessments, that they were not benefited by the amount for which they have been assessed or that the commissioner proceeded on a rule wrong in law. The observations made in oür opinion in Matter of City of New York, West 157th Street (supra) on this subject are applicable here and render further discussion unnecessary.

It follows that the order should be reversed, with costs, and the motion to confirm the report of the commissioner of assessment granted, with costs.

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

Order reversed, with costs, and motion to confirm report of commissioner granted, with costs.  