In re Auchmuty ( 1879 )

Brady, P. J.:

It is conceded that the assessments to which the proceedings herein relate, under the adjudication in the application of the Protestant Episcopal public school, made by the Court of Appeals, and declared on the first of March of the present year, cannot be maintained. It seems that the assessor assessed the whole expense for flagging upon the lots where curb and gutter-stones were set, and did not include the lots in front of which only flagging was laid, and this principle of assessment has been disapproved. It was held that the lots in front of which only flagging was laid were benefited, and should have been assessed in proportion to such benefits. It is quite clear, from the evidence in this matter, that the whole amount of the work done in front of the lots that were not assessed was 9,599 square feet'of flagging, and it was conceded that twenty-two and a-half cents per .foot was a fair and reasonable price therefor. This work, at the rate named, would make its cost $2,132, which deducted from the total expense assessed, namely, $25,904, would leave $23,772 as the amount which should have been distributed upon the property which has been assessed. Under these circumstances, upon the consideration of those applications at Special Term, the appellants insisted that the assessment should not be vacated, but should be reduced in accordance with the results just stated ; but the learned justice presiding rejected this proposition and, as it already appears, absolutely vacated the assessments. The act of 1870, chapter 383, section 27, provides that “if upon such hearing it shall appear that, by reason of any alleged irregularity, the expense of any local improvement has been unlawfully increased, the judge may order that such assessment upon the lands of said aggrieved party be modified by deducting therefrom such sum as is in the same proportion to such assessment as is the whole amount of such unlawful increase to the whole amount of the expense of such local improvement.”

And inasmuch as the objection to the assessment here was for an unlaAvful increase, the statute mentioned would seem to embrace and to authorize the reduction or modification asked. The power to do this, under that statute, was determined in the matter of the St. Joseph's Asylum, (69 N. Y., 357.) It is said, however, in the matter, of the Protestant Episcopal public school, to which reference has been made, that the Court of Appeals have declared that the petitioner’s assessment in that case could not be reduced, but it seems from the opinion that there was no fixed sum or criterion for the court to act upon, and it was said that “ the court would occupy the position of the assessors, and the assessment would be according to its judgment, instead of the judgment of the assessors ; besides, it would have no power to make the assessments upon the omitted parcels, and thus make a valid assessment for the improvement.”

That case differs from this, therefore, because there is in this case a fixed sum or criterion for the court to act upon, the exact amount of the unlawful increase having been ascertained. Indeed a tabular statement, presented for the consideration of the court, shows the amounts assessed, and the amounts which would remain after a reduction in a proper proportion. It is thought, under these circumstances, that the orders made were erroneous, and that a proper reduction, including the unlawful excess, should have been ascertained and directed by the Special Term.

It is ordered, therefore, that the matter be remitted to the Special Term for its action in the respect mentioned.

INGalls and DaNiels, JJ., concurred.

Proceedings remitted to the Special Term for its action, as directed in the opinion.