
    In the Matter of the Application of Frank E. Hagemeyer, Respondent, for a Writ of Mandamus against Edward M. Grout, as Comptroller of the City of New York, and Patrick E. Leahy, as Deputy Collector of Assessments and Arrears of the Borough of Queens, Appellants.
    Second Department,
    June 8, 1906.
    Municipal corporations — assessment for local improvements in city of New York — Laws of 1893, chapter 644, construed—only interest on annual installments -due chargeable to landowners benefited — mandamus will not lie to correct erroneous assessment.
    Chapter 644 of the Laws of 1893, which provides that an assessment imposed for local improvements in the city of New York may be di vided" into twenty annual installments, payable annually, "with interest,” by the landowners benefited, must be construed to mean that a landowner is chargeable only with annual interest on each installment as it becomes payable, and not that he is chargeable with interest on the whole balance to become due thereafter.
    But when by error the assessors have assessed interest on the whole balance against a landowner the act is quasi judicial and mandamus does not lie to compel the acceptance of a less sum. The remedy of a landowner is prescribed by title 3 of chapter 17 of the Greater New York charter and more especially by section 959 thereof.. Said remedy is exclusive.
    Appeal by the defendants, Edward M. Grout and another, from an order of the .Supreme Court, made at the Queens County Special Term and entered in the office of the clerk of the county of Queens on the 9tlv day of December, 1905, granting a peremptory writ of mandamus. directing the appellants to receive a certain proportion of an assessment as in full payment thereof.
    
      George L. Sterling. [John J. Delany with him on the brief], for the appellants.
    
      George E. Blackwell, for the respondent.
   Jenks, J.:

The dispute is over the amount required to discharge an assessment for"a local improvement. The assessment was laid pursuant to chapter 644 of the Laws of 1893 which in part by section 7 directed that the assessors “ shall divide the assessment or amount imposed upon any lot or parcel of land into twenty equal parts or annual installments, and in each year thereafter, for twenty years, shall assess an amount equal to one of said annual installments, with interest, upon the lots or parcels of land benefited by said improvement.” The cause of the dispute is over the interest demanded by the collector of the relator seeking to pay a second installment. Aside from interest^ the amount of such installment would be ninety-two dollars. The relator insists that the proper sum payable is ninety-two dollars with interest thereon for one year at six per cent. The -city officers contend that they were justified in charging interest at six per cent for one year upon the amount of the total installments remaining unpaid, or, in other words, upon nineteen-twentieths of the assessment. The learned Special Term held with the relator upon this question, and I think it was right.

The contention of the city officers is based upon a principle rather than on the construction of the phrasing of the statute, inasmuch as the learned corporation counsel, while not conceding that the statutory éxpression may not he read in accord with his contention, writes in his points: “ All that is necessary in order to sustain this contention is to hold that the;phrase ‘with interest’ modifies, the earlier words ‘ assessment or amount imposed,’ so that the 'meaning is with interest on the assessment or amount imposed.” The principle invoked is that the evident "purpose of. the act was to reimburse the city for its expenditure, and it is asserted that in no. way can this be done save by such imposition of such interest.- The scheme of the act. was to provide in general for local improvements ' to be paid for in the first instance by the issue of city bonds at not to exceed four and one-half per cent interest' in series of not more than $50,000, a series being payable in each year after the lapse of five years, but the ultimate cost was to be assessed upon the lands benefited'by the improvement. There is authority for the proposition that, when a municipality is authorized to borrow money to pay for a local improvement, it may include in its assessment the interest on the money so borrowed and so used. (County Commissioners, Petitioners, 143 Mass. 424, 433 ; Haverhill Bridge Proprietors v. County Commissioners, 103 id. 120 ; Davis v. Newark, 54 N. J. Law, 144, 146 ; State, Skinkle, pros., v. Clinton, 39 id. 656.) But it does not appear that the assessors sought to apply that principle -in this assessment, In other words, they did not attempt to add to the cost of the Work such sum of money as represented the interest, which the city would be required to pay at the rate of four and one-half per'cent per annum on so much of the proceeds as Were directed to this particular improvement before that part of -the bonds were payable by the City, less the amount of interest at six peícent which the city might receive on .any. installments paid during the same period. To say the least such an adjustment woqld be difficult; . ' • -

Taxes “ do not draw interest, as do sums of money, owing upon contract; but only when it is expressly given.” (Cooley Taxn. [3d ed.] 19.). ,And this principle.has been applied, logically, 1 think, to local assessments of this general character. (Sergent & Co. v. Tuttle, 67 Conn. 167, and authorities cited ; Brennert v. Farrier, 47 N. J. Law , 75, and authorities cited.) The legislative expression in this statute seems entirely clear. The words “ with interest” are" rendered to the preceding word “ amount ” and it is that sum which is the basis for the calculation of such interest. I can find no legislative intent to justify me in wrenching the words “ with interest ” from their present place and in -interpolating them in another part of the sentence in order to change their effect accordingly. Of course there is the legislative intent that the city should -be .reimbursed in that the scheme is for assessment of the cost upon the property benefited. And the provision incident to the legislative concession to the property owner that he might pay his assessment by installments but with interest ” tends also to reimburse the city. But if such provisions do not according to the arithmetic of the city authorities afford absolute and complete reimbursement, I know of no rule of construction that permits the court to legislate further to that end under the guise of statutory construction or interpretation. The Legislature plainly thought that interest on deferred payments at the legal rate was equivalent tó present payment, and that when the cost of the improvement was charged upon the lands, and postponed payments thereof carried interest, the property owner would pay for the benefits. It might have done less, Or possibly more, with an eye to reimbursement of the city, but the courts can only determine the measure of its doing!

But I am of opinion. that mandamus cannot issue. The statute directed the assessors to assess an amount “with interest” upon the property. And it appears that the sum so assessed includes interest. The sum then is fixed as the result, of a quasi judicial act (Dolan v. Mayor, etc., 62 N. Y. 472), and is ‘returned to the collection officer on the assessment list as! the assessment of the “entire cost.” adjudged by the assessors. Therefore, when the court orders the receipt of a sum less than that amount and a discharge of the lien, it in effect thereby reduces the amount of the assessment. If the amount was erroneous for the reasqn. that the interest charged was not the interest afforded by the statute, the assessment as laid is pro tanto erroneous in that the assessors erred in their reading of the statute. The error is not the result of a mere, clerical calculation, as if, e. g.y the assessment had been determined without regard to interest, and the collector or some clerk had cast up the interest therefrom, It is one of substance, made by the .assessors in their .determination of the procedure of assessment and impost. I think, therefore, that the affirmative remedy of the relator in such a case as this is prescribed by title 3 of chapter 17 of the Greater Hew York charter, and more especially by section 959 of said charter. The trend of the decisions upon these and similar provisions relating to the city of Hew York is to hold that they afford the exclusive affirmative relief. In People ex rel. Martin v. Myers (135 N. Y. 465) the court held under like provisions of the Consolidation Act that the prohibition extended, even to a writ of certiorari. (See, too, Scudder v. Mayor, 146 N. Y. 245, 249 et seq. ; Matter of N. Y. C. & H. R. R. R. Co., 49 App. Div. 281 ; affd., 163 N. Y. 604.)

The order must be reversed, but without costs, and the motion for the writ be denied, without costs. ■

Hirschberg, P. J., Woodward, Hooker and Miller, JJ., concurred.

Order reversed, without costs, and motion for writ denied, without costs.  