Ross v. Mayor of New-York , 3 Wend. 333 ( 1829 )

By the Court. The assessment in this case was correctly made under the 269th section of the act, (2 R. L. p. 445,) but in the application of the principle the assessor erred. By this section it is directed that in all cases where the bylaws or ordinances (of the common council) shall require any thing to be done in relation to the filling up, altering, or amending any of the public slips in the city, the corporation shall cause the expense of such works to be estimated and assessed in the same manner as Is directed by the act with-respect to the paving or regulating the public streets in the city, except that one third of the expense attending the1 saméis to be borne by the corporation, and the residue by the persons in the vicinity who may be benefitted thereby.. The manner of estimating and assessing the expense of paving and regulating the public streets is to make “ a just and equitable assessment thereof among the owners or occupants of all the houses and lots' intended to be benefitted thereby, in proportion as nearly as may be to- the advantage which each shall1 be deemed to acquire.” (§ 275.) The direction given to the assessors by the ordinance of the corporation- was in conformity to this provision of the statute, but the assessors did not obey it when they omitted to assess a proportion of the expense on the lot owned by the corporation,, on which the market is built. The property of the corporation, if benefit* ted by the improvement, is as much the subject of assess* ment as the property of individuals. The intention of the N?*sIature *s manifest, that the property in the vicinity shall contribute two thirds of the expense, and whether that property belongs to the corporation of the city, or any other body corporate, or to individuals, is immaterial. The charge of one third of the expense to the corporation in improvements of this kind is made by the statute, without reference to the owning of property by the corporation in the vicinity. It is á charge upon the funds of the city generally, in consequence of the general benefit derived from the improvement, and the profits t accruing to the corporation from wharfage, &c, In this respect, therefore, the assessment is erroneous, and must be set aside. As to the lot lying upon West street, in the north corner of Spring street, returned as belonging to George Watkins, the relators have mistaken the fact. That lot is assessed as No. 10, fronting on West street, and therefore is properly omitted from the assessment, as fronting on Spring street; on that street it is designated in the map as No. 11, and no assessment appears in the return to have been made on it as No. 11, which probably misled the relators ; but the lot having been assessed as No. 10, it would have been erroneous to have made a second assessment upon it*