In re Board of Street Opening & Improvement , 81 N.Y. Sup. Ct. 561 ( 1893 )

O’BRIEN, J.

This proceeding was instituted to acquire title to Forest avenue, in the Twenty-Third ward, from Home street to East 168th. street, a distance of one block. After viewing the premises, depositing an abstract of their estimate and assessment, together with the damage and benefit maps, and after hearing all the objectors, the commissioners completed their final report, and, upon notice to all parties, the same was presented at special term, and confirmed. From the order of confirmation, an appeal was taken, and the order reversed, upon the ground, as shown in the former opinion, (64 Hun, 59, 18 N. Y. Supp. 727:)

“The method in which this assessment was levied was so manifestly unjust and out of harmony with the system upon which assessments of this kind should be levied that the report of the commissioners should not have been confirmed upon that ground.”

Upon such appeal, it appeared then, as it does now, that, in addition to land, a building was taken; and it was assumed that section 970 of the consolidation act was applicable. ' That section provides, among other things, that in case of—

“The opening of any street or avenue, or portions of any street or avenue, in said city, when the street or avenue, or portions thereof, sought to be opened shall have been laid down and shown upon any general map or plan made and filed in pursuance with any law of the state of New York relative to the mapping or planning of avenues in said city, when no buildings for which compensation can lawfully be made shall be taken, the assessment district shall not extend beyond the center line of the blocks adjacent thereto, nor beyond the ends of the street or avenue, or portions thereof, sought to be opened.”

The construction given to this section was that while it allowed the commissioners to extend the assessment district “beyond the center line of the blocks,” and “beyond the ends of the street or avenue, or portions thereof, sought to be opened,” upon the area thus extended, no more than a ratable proportion of the cost of the building taken ought to be imposed; in other words, that the assessment for the land taken for the street should not extend beyond the center line of the blocks, nor beyond the ends of the street or avenue, or portions thereof, sought to be opened, while the value of the building taken ought to be ratably apportioned upon the property embraced in such extended area. Under this construction, the value of the land taken would be assessed upon the area as above defined, and only the cost of the building would be imposed upon the extended area. Subsequent to this decision, a motion for reargument was made, upon the ground that the court’s attention had not been drawn to sections 677 and 958 of the consolidation act. These sections (677 and 958) make applicable, to street proceedings in the Twenty-Third and Twenty-Fourth wards, all the laws then in force in reference to street proceedings in the city of New York, (title 5, and particularly section 970,) just the same as if those streets had been laid out by the commissioners appointed under the act of 1807—

“Except that the said commissioners of estimate and assessment who may be appointed as herein provided may assess for such opening all such parties and persons, lands and tenements, as they may deem to be benefited by such improvement, to the extent which said commissioners of estimate and assessment deem such parties, persons, lands and tenements benefited thereby, provided that as to streets which shall be in the opinion of said commissioners of estimate and assessment or a majority of them, more than one mile in length, not more than one-half of the amount awarded for damages and of the expenses attending such opening shall be so assessed; the amount of such damages and expenses not so assessed being hereby made a charge upon the city of New York to be paid as hereafter provided.”

The motion for a reargument was denied, upon the ground, as stated in the memorandum, that—

“Independent of the construction to be placed upon the statute, we do not think a reargument should be ordered, as the decision was correct, because the commissioners had adopted an entirely erroneous principle in the levying of the assessment.”

Notwithstanding this intimation that the question of whether section 970 or sections 677 and 958 applied was an open one, and subject to reconsideration when again presented, the commissioners, assuming that the court had held that section 970 applied, state, in their final report presented upon this appeal, as follows:

“The commissioners refer to the previous report as made by this commission, as to their prior action in this matter, and they now, in deference to, and in 'accordance with, the decision of the general term in the same matter, make their final report in accordance with that decision, by reducing the assessment upon the property beyond the center line of the block, to the limit prescribed by the opinion of the general term.”

In other words, the commissioners assumed that they were instructed by the general term to place the assessment for the land taken upon the area defined by section 970, and to impose upon the extended area of assessment only the value of the building. In this the commissioners fell into the error of assuming that this court had placed its decision upon the ground that section 970 controlled, whereas the court had left that question open, as shown by its memorandum upon the application for reargument, when its attention was called to the special provisions relating to the Twenty-Third and Twenty-Fourth wards. Whether it will adhere to the expression contained in the opinion as to what portion of the assessment can be placed upon the extended area will be passed upon when that question is presented. At present, it is only necessary to say that, upon consideration, we have reached the conclusion that section 970 is not applicable, for the reason that this proceeding affects property in the Twenty-Third ward, and is therefore governed and controlled by sections 677 and 958 of the consolidation act, which are made specially applicable thereto. Section 970 contains the general provision in reference to the assessment district in street-opening proceedings, and, as will be seen by a reading of the consolidation act, sections 677 and 958 except the Twenty-Third and Twenty-Fourth wards from the general provision of section 970. Between these sections there is no conflict, and, under well-settled rules of construction relating to statutes, all can stand. Such rules require that a special statute providing for a particular case, or applicable to a particular locality, is no; repealed by a statute general in- its terms and application, unless he intention of the legislature to repeal or alter the special law is manifest. McKenna v. Edmundstone, 91 N. Y. 231; In re Commissioners of Public Parks, 47 Hun, 305. Moreover, that—

“It was hot the intention of the legislature to supersede the special provisions of chapter 604 of the Laws of 1874 is apparent from its re-enactment in the consolidation act, as well as from the saving clause of section 1008 of the consolidation act, which provides ‘that nothing contained in this title [Street Openings] shall be construed as affecting any provision of special acts relating to particular districts or portions of the city, so far as such provisions are inconsistent with the provisions of this title.’ ”

And the existence of these sections (677 and 958) has been recognized and the sections applied in many proceedings since the enactment of the consolidation act. Thus, since the former appeal was. decided, the attention of this court was called to section 958 in Re Board of Street Opening & Improvement, (Sup.) 20 N. Y. Supp. 563. As said in that case:

“By section 958 of the consolidation act it is provided that the commissioners may assess, for street openings, persons, lands, and tenements as they may deem to be benefited by such improvement, to the extent which said: commissioners of estimate and assessment deem such persons, lands, and tenements so benefited thereby. * *

The commissioners, in their report, further say—

“That certain pieces or parcels of land lying beyond the center line of the-block adjacent to the avenue so opened, are benefited more than the amounts" assessed against such parcels, by reason of the reductions made as aforesaid,, in accordance with the opinion of the general term.”

Since the commissioners in this proceeding, as shown by their report, did not assess property which they considered benefited by the improvement to the extent of the benefit, for the reasons already given, and as they proceeded under section 970, instead of sections 677 and 958, of the consolidation act, it follows that the order confirming the report must be set aside. Under the sections (677 and; 958) applicable to this proceeding, therefore, the commissioners,, when buildings are taken, may assess for such opening such property as they may deem benefited by the improvement. This conclusion renders it unnecessary to point out what are claimed to be the inequalities in the assessments levied upon particular parcels, because it would appear that the commissioners, deeming themselves-controlled by the former expression of opinion of this court, and proceeding by an erroneous method, felt compelled to crowd into' a narrower area than the law permitted the assessment necessary to cover the cost of the improvement. So much of the order as. denies the motion to vacate and set aside all the proceedings should therefore be affirmed, and so much of it as confirms the report of the-commissioners should be reversed, and the proceedings sent back to. the commissioners for revisal and correction. Ordered accordingly.. All concur.