In re the Hebrew Benevolent & Orphan Asylum , 17 N.Y. Sup. Ct. 112 ( 1877 )

Beady, J.:

The petitioners claim, that there never was any valuation placed upon the property which they own, and that their case falls directly within the decision made by the Court of Appeals in The Matter of the Second Avenue Methodist Church, decided in June, 1876, and which went up from this court. They also claim that the assessment for the sewer in Seventy-seventh-street should be vacated, as it is based upon an estimate exceeding one-half of the valuation of the property assessed, as shown by the corporation, and inasmuch as the court has no power to order a reduction of the amount unless authorized by the charter of 1870, which is denied.

The first premise is unfounded, because the facts do hot warrant it. There had been an assessed valuation of the property prior to the imposition of the assessments, namely, in 1851, 1855 and 1856, and this fact, it was determined by the court below, removed it from the operation of the decision made in the Court of Appeals. This view seems to be correct. The court said in that case: “ It is apparent that the case proceeded upon the tacit assumption, that there had never been a valuation put upon the lots by the ward assessors or their successors.” And again: “ The authority to the city, in the purview of the proviso, is no more than to assess for local improvements all property benefited' thereby, when that property has been previously valued by the general tax assessing officers.” The proof was made, therefore, by the city of a previous and duly assessed value by the proper officers, which furnished the link which was omitted in the case of the Second Avenue Methodist Church, and makes the assessments valid.

In reference to the assessment for a sewer in Seventy-seventh street, it seems to be conceded that the impost was based upon an erroneous valuation of the property, being in excess of one-half of its assessed value. This does not render it necessary to vacate the assessment. There can be no doubt that it may be reduced under the provisions of the charter of 1870. (Laws 1870, page 903, chap. 383, § 27.) There is nothing, in the judgment of the Court of Appeals, in tbe Second avenue case affecting this question. Tbe lack of authority to impose an assessment, wbicb was declared in tbat case, is given here by tbe proof suggested, and bence tbe assessment in excess is an irregularity only.

Tbe order should be affirmed, therefore, except as to tbe assessment for tbe sewer in Seventy-seventh street, and as to tbat it should be reduced to tbe proper sum.

Ordered accordingly, without costs to either party on this appeal.

Davis, P. J., and Daniels, J, concurred.

Order affirmed, except as to tbe assessment for tbe sewer in Seventy-seventh street, and as to tbat reduced to tbe proper sum, without costs to either party.