
    Matter of Acquiring Title to Townsend Avenue, in the Twenty-fourth Ward, City of New York.
    (Supreme Court, New York Special Term,
    May, 1901.)
    New York city — Assessment for benefit — Inequitable rule of apportionment — I,. 1897, eh. 378, § 980.
    Condemnation proceedings taken by the city of New York, in which the preliminary report of the commissioners was filed after Jan. 1, 1898, are governed by the new charter (If. 1897, ch. 378), and consequently the commissioners may, under section 980 thereof, assess premises, along the line of the improvement, for benefit to the extent of one-lialf their value as valued by them and are not now limited, as formerly, to one-half the value as valued by the city tax commissioners.
    
      Where an inspection of the report of commissioners of assessment indicates that their rule of apportionment for benefit is irrational and inequitable, their report must be sent back for revision and correction.
    Objections to the confirmation of the report of the commissioners of assessment. The facts sufficiently appear in the opinion of the court.
    John Whalen, Corporation Counsel (John P. Dunn, Assistant Corporation Counsel), for city of New York.
    John C. Shaw, for Astor estate.
    Gumbleton & Hottenroth, for objectors.
   Lawrence, J.

There are only two objectors to the confirmation of the report in this proceeding. Messrs. Gumbleton & Hottenroth, who appear for Morris B. Schurck, object to the assessment levied upon premises indicated as No. 39 on the benefit map, on the ground that the commissioners have no authority to assess said property for more than one-half its tax valuation, as fixed on the date of vesting the title in this proceeding, to .wit, September 6, 1897. It is conceded that the proposed assessment on this parcel is $550.50, and that its tax valuation in 1897 was $500. It is, therefore, contended that the commissioners have no authority to impose a greater assessment than $250, being limited by section 981 of the Consolidation Act, chapter 410 of the Laws of 1882, to assessing only one-half of the valuation of the property, as valued by the tax commissioners. This objection cannot be sustained for the reason that it has frequently been held that in any street opening proceeding pending when the charter of the Greater New York took effect the commissioners were limited in their assessments by the provisions of the Consolidation Act only in cases where the preliminary report had been filed before the-charter took effect, and that in all other proceedings the new provisions of the charter would govern. Matter of Whitlock Ave., 51 App. Div. 436; Matter of East One Hundred and Seventy-fifth St., 49 id. 114. It is also conceded that in the present proceeding the commissioners filed their preliminary report on Deeembér 9, 1898, and I agree with the counsel to the corporation that the proceedings were, therefore, governed by the provision of the Greater New York charter, section 980, which provides that such commissioners shall “ in no case assess any house, lot, improved or unimproved lands, more than one-half the value of said house, lot, improved or unimproved land, as valued by them.” Inasmuch as it appears that the property in question amounted to at least two city lots, which are worth $1,000 apiece, it is apparent that the provision of the charter of the Greater New York has not been violated. The objections filed to the assessments levied on lands belonging to the trustees of Astor relate to benefit numbers 12, 22, 24, 25 and 26. It appears that this tract of land has a frontage on Jerome and Walton avenues and One Hundred and Seventy-first street, and that the awards for the lands which are taken make a total of $8,610.20, while the assessments against the remaining property aggregate the sum of $10,146.75.u It is objected by Mr. Shaw, who appears for the Astor trustees, that the assessment on its face is inequitable as made up by the commissioners, not only with regard to the Astor property, but with regard to other parcels of property along the line of the improvement, and a tabulated statement of the awards by blocks and the assessments on the adjoining property by blocks, running from Townsend avenue to the easterly and westerly side of the area of assessment, on both sides of the improvement, is presented by him. Front that statement, which is justified by the papers presented, it appears that there were some buildings taken which were situated upon the block between One Hundred and Seventy-second street and Belmont street, and that the amount of the award is $5,763.81. Of this amount the commissioners assessed one-third upon the city, amounting to $1,921.72, leaving $3,842 of the awards for buildings, to be assessed along the line of the improvement. It also appears that all the property between One Hundred and Seventieth and One Hundred and Seventy-first streets, which is taken in this proceeding, is awarded the sum of $7,131.67, and that the total amount assessed on either side of the improvement, from Townsend avenue to the outer area of assessment on both sides of the improvement, is $9,179.56, or $2,047.89 more than the actual cost of the improvement. On the next block it appears that a small piece of property owned by the Astor trustees is taken, for which an award has been made of $1,515.30. The total awards on that block are $8,691.95, and the commissioners have assessed upon the property on either side of the improvement $8,178.91, so that where, in the one instance, they paid $7,131, they assessed back on both sides of the improvement $9,179, while in the other instance, where they paid $8,691, they assessed back on both sides of the improvement, $8,178; that is, in one case they assessed about thirty per cent, more than the cost of the improvement, while in the other case they assessed only ninety per cent, of the cost of the improvement. On the block between One Hundred and Seventy-second and Belmont streets, it appears that the total land damages amount to $21,563, and that the assessments on both sides of the improvement, from Townsend avenue to the outer edge of the area of .the assessment, is $17,287, being a little less than eighty per cent, of the land damages. This does not include $3,-842, the amount of the award for buildings, which is left to be assessed after the assessment upon the city of $1,921; being one-third of the award for the said buildings, and, adding this $3,842 to the land damages, there is a total of $25,405 awarded to the owners of property taken, while these blocks were only assessed $17,287, not quite seventy per cent, of the cost. I agree -with the counsel for the Astor trustees that the rule of apportionment for benefit along the line of the improvement is, therefore, irrational, inequitable and unjust, and it seems to me that the court is bound, under such circumstances, to send back the report for revision and correction. In other words, while I fully recognize that, upon questions of benefit and damage, the commissioners’ report is entitled to more respect than the verdict of a jury, it seems to me that the apportionment that has been made of the assessments along the line of this improvement are violative of principle and ought not to be sustained. Draw order accordingly and settle on two days’ -notice.

Ordered accordingly.  