#### Matter of the Opening of East One Hundred and Sixty-ninth Street.

(Supreme Court, New York Special Term,

February, 1899.)

1. Greater New York charter — Does not affect the method of assessments for benefits in street openings begun under the Consolidation Act — Interest.

In view of the provisions of the Greater New York charter (Laws of 1897, chap. 378, § 1614) continuing all proceedings instituted under the Consolidation Act (Laws of 1882, chap. 410) under the laws then existing, unless otherwise specially provided, the owners of property, taken in a street-opening proceeding by which the city of New York acquired title on September 16, 1896, are entitled to have both their benefits and burdens determined by the Consolidation Act, and neither should be assessed by the Greater New York charter, which enacts a different method of assessment for benefit. In such a case an assessment for benefit should not bear interest.

2. Street openings — Area of assessment.

The area of the assessment for a street opening is within the discretion of the commissioners, unless some fundamental mistake appears.

*258Objections to the confirmation of the report of commissioners in proceedings for a street opening.

John Whalen, corporation counsel (John P. Dunn and Thomas C. Blake, of counsel), for city.

Ernest Hall and Thomas S. Bassford, for William N. Clark and others.

Truman H. Baldwin, for A. Newbold Morris and others.

John C. Shaw, for other property-owners.

Charles V. Gabriel, for Annie Baird.

Russell, J.

In considering the objections to the confirmation of the report of the commissioners in the imposition of burdens upon the property-owners and the city, it is important to bear in mind as a guiding key the important fact that the proceeding originally instituted deprives the owners of property of a portion of their rights, 'and takes from them that part of the property which is to be used for street purposes. It is essential to remember that the theory upon which the vesting of title to lands in the city, prior to the receipt of compensation, by proceedings *in invitwm,*is based upon the certainty that at a fixed date the title to the lands vests in the city, and the right of the owners to compensation is then equally as absolutely fixed.

In the case of Browning v. Collis, 21 Misc. Rep. 155, the justice before whom this motion is pending had occasion to consider the constitutionality of the Consolidation Act, as amended by chapter 660 of the Laws of 1893, and held that, though the language of the statutes was somewhat ambiguous, the clear intent was not to give the city any option of relinquishment to the owners after the date of the vesting of the title, and that all that the statutes, from the initial one contained in chapter 86 of the Laws of 1813, down to and including the act of 1893, designed to provide was a sure method of compensation to the owner from the moment of vesting the title in the city.

The proceeding for this street opening was begun by resolution of the board of street opening and improvement on the 14th of September, 1894. The title to the lands was acquired by the city *259on the 16th of September, 1896. From that moment, therefore, the city owned the title to the land taken for the streets and was entitled to their use. Correlatively, therefore, the owners had the right to look to the law as it then stood for compensation. It may, therefore, be fairly assumed that, so far as valuations for compensation are concerned, the owners had the right to treat the subject as one then fixed by law. ^

The same is in a measure, though not, perhaps, to the whole extent of the rule in case of the interest to be paid for, the same in regard to the imposition of burdens. The commissioners must necessarily, in considering how much benefit an owner shall pay for the local improvements, take a fair and just view of the property surrendered or - injured, belonging to those same owners. In those cases where any of the property of the benefited owner is taken, his compensation comes by deduction from the amount of assessment for benefit. He should, therefore, have the right to rely upon the law as it was when his property was taken from him. So that, while his measure of compensation is adjusted under one law then in force, the burden to be imposed for benefits should not be imposed under a law subsequently passed.

These considerations do not necessarily bring us to the question of constitutionality of the law thereafter enacted regulating a different method of assessment for benefit. They are sufficiently pertinent in determining the intent of the legislature so far as the courts have to construe the provisions of the charter of Hew York city taking effect January 1,1898. For the purposes of uniformity of action and preventing confusion, it may be fairly assumed that the legislature did not intend to increase the burden of owners of property affected by local improvements inaugurated under prior laws. This view is strengthened by section 1614 of the Charter Act (Laws of 1897, chap. 378), preserving all rights and remedies, and continuing all proceedings under the Consolidation Act under the laws then existing, unless otherwise specially provided. The conclusion, therefore, follows that the commissioners were right in limiting the benefits to one-half of the value of the lot as fixed by the tax commissioners, instead of possibly increasing that limit to one-half of their, own valuation as permitted by the charter taking effect January 1, 1898.

Similar considerations are effective in regard to the award of interest. It may also be remembered that interest is the compensation awarded for the use of the property taken from the owner *260and thereafter enjoyed hy the city. It is a fixed sum, and, under the theory of the Consolidation Act, follows as an incident from vesting the title. The theory of assessment for local improvements of this character is that, in the eye of the law, from the moment a city owns the property certain lot owners are benefited, although the actual improvement may be delayed by the work to be performed in rendering that benefit available. The question is, there-' fore, how much an owner of a lot is benefited or injured at the time the city takes the property. From that moment it becomes in the law the property of the city for street purposes, and, as the use of it belongs to the city for public purposes, the imposition of the expense of that use as an equivalent for the deprivation to the owner is a public expense. Without controlling language in the statute the property owners should not pay for the public use of a street.

The commissioners were, therefore, right in not including in their awards and assessments for benefit any interest upon the awards made by them.

The area of assessment is within the discretion of the commissioners unless some fundamental mistake appears. Matter of Cruger, 84 N. Y. 619; Genet v. City of Brooklyn, 99 id. 308.

The commissioners had the right to consider that the eastern owners were more largely benefited than those on the west,, especially as the map of the assessment sheets indicates a direct extension to the east while it does not to the west.

The report of the commissioners is confirmed.