People ex rel. Keim v. Desmond

111 A.D. 757, 97 N.Y.S. 795, 1906 N.Y. App. Div. LEXIS 249

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 7, 1906
• Status: Published

Opinions

Kruse, J.:

The relators seek to have reviewed by certiorari the validity of a local assessment for constructing a sewer in the street which their lands adjoin. The primary question involved in this controversy is whether, in making their determination, any rule of law was violated by the assessors to the prejudice of the relators. We think this has not been made to appear. The lands of the relators are on the westerly side of the street. They are considerably higher than on the east side. . In 1871 a stub sewer, was constructed on the west side of the street about half way across the block, evidently to accommodate temporarily the lands directly opposite the sewer on the west side of the street, which included the relators’ premises, the lands on the east side being too low to drain into it, In 1904 the sewer in question was constructed, running substantially parallel with the first but nearer the east side, intended, no doubt, as a permanent part of the general sewer system of the city and to supersede the old sewer. It extended across the entire block and was so built that both sides of the street can drain into it.. The assessors in their return state that the “ sewer as laid is a benefit to the property owners equally upon both sides of the street, and that said se.wer so laid is provided with necessary elbows and tees for connecting with the sewers from houses on each of the lots on the westerly side of South Hamilton Street, and was built and constructed and is adapted for the purpose of draining, the lots and1 houses on both sides of South Hamilton Street.”' The assessors seem to have apportioned the expenses of this last sewer equally on both sides of the street according to the frontage of éach lot. The relators appeared before the assessors and objected- to the assessment, but the assessors adhered to their determination, and thereupon the relators filed their objections with the city clerk, as, the charter of the. city and the act creating the board of assessors permit, to bring the matter before the common council. (Laws of 1862, chap. 18, § 107, as amd. by Laws of 1872, chap. 625; Laws of 1897, chap. 738, § 11, subd. 5,- as amd. by Laws' of .1901, chap. 384.) That body unanimously annulled the assessment and referred it back to the assessors to make a new assessment, and the assessors again apportioned the expenses as before, making the reassessment precisely the same as the first assessment. '

It is not claimed that the officers of the city in constructing this sewer did not proceed as the charter

* provides, or that there is any infirmity in the proceedings, save that the assessment is not made in accordance with the provisions of the charter.

By subdivision 2 of section 99 of .the charter (Laws of 18.62, chap. 18, ás amd. by Haws of 1894, chap. 437) it is .provided that, as regards work of this character, the expense thereof shall be assessed “ upon such real estate as they shall deem benefited thereby, in proportion to the amount of 'its benefits.” The act creating the board of assessors contains a similar provision. (Laws of 1897, chap. 738, § 11, subd. 2).) All local assessments' are made by the board of assessors. (Id. § 11, as amd. by Laws of 1901, chap. 384.)

It is contended that in making the assessment the assessors departed from this rule. The objection is now made that the assessment was made upon the foot-frontage basis and not according to what the improvement actually benefited the relators’ lands, although the specific objection was not made to either the assessors or the common council that the assessment was wrong because made upon the foot-frontage basis. It was contended there" that this sewer was no benefit to the lands on the west side of the street, or as it is put in the objections filed with the city clerk, “ That the property on the west side of the street is certainly not benefited to anything like the extent that the property on the east side of the street is by this sewer, and should not pay at same rate as the property on the east side of the street. But, notwithstanding this the assessment is at the same rate on both sides of the street.” Assuming, however, that the objections are sufficient to raise the question, we still think that the relators have failed to establish that the assessors' departed from the rule laid down in the charter for making assessments of this character. By computation it appears that the assessment is at a uniform rate according to the frontage of the respective premises taxed, but this alone is not sufficient to condemn the assessment, for it may still correctly represent the proportionate benefit of the improvement to each lot (People ex rel. Scott v. Pitt, 169 N. Y. 521; City of Ithaca v. Babcock, 72 App. Div. 260; Donovan v. City of Oswego, 90 id. 397, 401), and this . holds good as to premises on either side of the street, for the assessors expressly state in their return that the sewer is laid for the benefit to the property equally on both sides of the street, and for the purpose of this review the return must be taken as true.

While there are other circumstances which might lead to a contrary conclusion, yet it is a question of fact for the assessors involving their judgment and discretion and not reviewable here. (O'Reilley v. City of Kingston, 114 N. Y. 439, 448; Le Roy v. Mayor, etc., of N. Y., 20 Johns. 439.)

Although the common council might annul- this, first assessment and remit the matter to the assessors 'for reassessment, yet the assessors were the final arbiters of the extent that these lands were benefited by this sewer. The charter makes the reassessment final and conclusive. (Utica charter, § 107, as amd. by Laws of 1872, chap. 625.) The act creating the board of assessors contains similar provisions. (Laws of 1897, chap. 738, § 11, subd. 5, as amd. by Laws of 1901, chap. 384.)

The cases relied upon by the relators we think do not apply. It appeared in those cases from the physical situation and undisputed facts, that the local improvement was of no benefit to the lands assessed, as in the Dunkirk case, where it appeared that the lands were so low that they could not be drained into the 'sewer. (Clark v. Village of Dunkirk, 12 Hun, 188.) Such is not this case. It cannot be said that this sewer is no benefit, and the amount or extent of its benefit to the relators’ lands was a question for the assessors. They saw the premises, knew their precise location, area, depth of lots, the extent of the improvements, the relative value of the lots on the west side, which are on high ground as compared with those on the low ground on the east side, the condition of the old sewer, the service and added value of the new sewer to these lands and other circumstances, which we cannot know, and regarding which the record is silent:

The objection is also made by the defendants that the writ of certioiari will not lie to review the determination of the assessors for the reason that their determination after the review by the common council is made final and conclusive by the express provisions of the charter and the act creating the board of assessors (People ex rel. Schuylerville & U. H. R. R. Co. v. Betts, 55 N. Y. 600; People ex rel. Rothschild v. Muh, 101 App. Div. 423), but upon that we express no opinion. We rest our decision upon the ground that the relators have not shown .that the assessors violated any rule of law in making their assessment prejudicial to their rights. This they are required to establish to successfully attack its validity.

The writ of certiorari must be dismissed, and" the assessment confirmed, with fifty dollars costs and disbursements.

. All concurred, except McLennan, P. J., and Hash, J., who dissented in an opinion by McLennan, P. J.

See Laws of 1862, chap. 18, § 99, as amd. by Laws of 1894, chap. 437.— [Rep.