People ex rel. Howlett v. Mayor of Syracuse

9 N.Y. Sup. Ct. 433

• Court: New York Supreme Court
• Decided: July 1, 1874
• Status: Published

Opinion

Gilbert, J.:

The return in this case presents two errors, which are too palpable to be overlooked. First. No part of the expense of the improvement has been assessed upon the city, whereas the statute

* made.it the duty of the commissioners, “to direct such part of said expenses to be assessed upon the city, and such part locally as they should deem just.” The legislature clearly declared a rule of assessment, whereby a part of the expenses should be borne by the city corporation, and the residue, only by the owners of property benefited. The only discretion on this subject, vested in the commissioners, was that of apportionment between the owners and the corporation. They had no power to exempt either from all contribution to the burden. The statute is imperative; and whether the legislation is wise or expedient, is a question with which neither the commissioners nor this court have anything to do. Laws in derogation of private rights must be strictly pursued. Second. The commissioners applied a rule of apportionment among the owners of property benefited, much more favorable to a religious corporation than other owners, whereas the statute † required the commissioners to assess that part of the expense, to be borne locally, “ upon the property benefited by the improvement, in a just and equitable manner, as near as may be in proportion to the benefits received.” The general rule for determining these benefits, is to ascertain the market value of the property, with and without the improvement.‡ The commissioners return that “ the land belonging to the church is of equal or greater value than that which adjoins it on the south,” and yet they assessed the latter nine times as much as the former. The statute does not authorize such an exemption in favor of property, which, for the time being, is used for religious purposes ; and the case in 11 Johnson’s Reports, so far as it asserts a contrary principle, must be deemed overruled by the subsequent cases which have been cited.

We are inclined to think also, that the commissioners erred in taking into consideration the effect of removing the barn. The assessment must be set aside.

Assessment set aside.

Charter, § 4, title 8.

Ubi supra.

Re Furman Street, 17 Wend., 649; Re William and Anthony Streets, 19 id., 690; Troy & Boston R. R. Co. v. Lee, 13 Barb., 169.