This was originally a -proceeding for acquiring lands for opening East One Hundred and Sixty-eighth street, formerly Charles place, from River avenue to the Concourse, and the commissioners of estimate and assessment were appointed on the 8th day of October, 1896. *188By ah order made on the 30th day of April, 1897, upon the application of-the appellants whose lands, abutted on the .northerly side of One Hundred and Sixty-eightli. street, the proceeding was extended pursuant- to-the provisions.of chapter 1006 of the Laws of 1895* to embrace an appraisal of the damages-and an assessment of the benefits sustained by property by reason of -the closing- of part of Gerard avenue between One Hundred and Sixty-eighth and One -Hundred and Sixty-ninth streets. The application for that Order was opposed by the city, which took an appeal- therefrom, but on appeal the order was affirmed both in this court--and by the Court of Appeals. (Matter of Mayor, 28 App. Div. 143 ; 157 N. Y. 409.) - Charles place, as it formerly existed, was widened and- laid out as ■ One Hundred and Sixty-eighth street, and this proceeding was.originally instituted to acquire the lands not theretofore- embraced ■ in Charles place. Gerard avenue was laid out and the title thereto, acquired by the city for-street purposes, in 1887, and the lands of -the appellants Deering and -Brown also abutted on that avenue- and were assessed in ■that proceeding. In 1894 a map or plan of• that portion of the city was adopted by the board-of street opening and improvement and the lines of Gerard avenue: as formerly laid out were thereby altered and changed and a portion of that avenue was closed, cutting oft the frontage of the appellants thereon. It is conceded that the< City owned the title* for street purposes, of that part of Gerard avenue which was closed and -that the proceeding to close the same was legal, so that the part indicated as closed had ceased to be a public highway and had become-the-property of the: city subject, to a statutory right of the owners of the abutting property to purchase the same. The- part of -the -avenue■ thus closed abuts on One Hundred and Sixty-eightli street .and lies between that street and One Hundred and Sixty-ninth street. The commissioners, on the 18th day of November, 1901, made and filed a preliminary abstract of awards for damages and assessments for benefits for the closing of Gerard avenue and advertised'the same for-objections. Thereafter, and on the 12th day of December, 1901, they filed a preliminary abstract of awards .and-assessments for opening One Hundred and Sixty-eighth-street without, including therein any estimate of damages or assessments for closing Gerard avenue. On the 16th day of. June, 1902, the commissioners filed a- final report of - awards for damages *189and assessments for benefits for the opening of One Hundred and Sixty-eighth street, but did not include therein either awards or assessments incident to the closing of Gerard avenue. The last-mentioned report is the only one which has been confirmed. The appellants objected to its confirmation upon the ground that only one report of awards and of assessments for benefits could be made by the commissioners, and that the practice pursued was both irregular and unauthorized, and this is their sole contention upon the appeal.
I am of opinion that the practice adopted cannot be sustained. It is unnecessary to determine at this time whether the order of the court made pursuant to the provisions of chapter 1006 of the Laws of 1895, extending this street opening proceeding to embrace damages and assessments for benefits on account of the closing of Gerard avenue, is necessarily an adjudication that all property benefited by the opening of the street is benefited by the closing of the avenue and is, therefore, assessable for the damages awarded on account of the latter , or whether, if this be the effect of the statute, it would be constitutional, or as to the extent to which the adjudication would be binding. The object and scope of the act of the Legislature in question was quite fully considered by this court and by the Court of Appeals on the appeal to which reference has been made. These questions do not require extended consideration now. It may. be stated generally that this act authorized the closing of streets and avenues and prescribed proceedings, independent of street opening proceedings, for the appointment of commissioners to determine the damages sustained thereby and for the payment of the awards by the city and for the assessment thereof so far as practicable upon the lands benefited. The Legislature then provided by section 11 of the act that when proceedings are instituted to acquire land for opening “ any street, avenue, public square or place laid upon the general or permanent map or plan of such city or district thereof which shall be contiguous to or in the neighborhood of any lot or parcel of ground fronting on any street, avenue, road, highway, alley, lane or thoroughfare which they have discontinued and closed as aforesaid, and proceedings have not been liad or completed to ascertain the damage caused by such discontinuance or closing, the court which shall appoint or has appointed *190commissioners of estimate and assessment in respect to such opening may, at any time, upon the application of the chief law officer or counsel to the corporation of such city, or upon any party or person interested in the land fronting upon the street, avenue,, road, highway, alley, lane or thoroughfare so discontinued and closed, order and provide, if it shall appear to the said court to be expedient and proper,, that the same commissioners of appraisal or of estimate an* assessment shall ascertain and determine the compensation which should justly be made for any loss and damage to the respective owners, lessees, parties and persons respectively, entitled in possession, reversion or remainder unto, in and to, or included in any lands, tenements, hereditaments, premises, easements, rights or interests taken, affected or damaged by and in consequence of the discontinuance or closing of said streét, avenue, road, highway, alley, lane or thoroughfare or such part or portion thereof as the said court may' direct and specify in said order, and the said commissioners of appraisal or of estimate and assessment shall thereupon make such-estimate accordingly, and the proceedings to ascertain and determine the same shall be conducted and completed in accordance with the provisions of existing laws realtive* to the opening of the street or avenue for which the said commissioners were appointed, except that any parcel of land deemed to be benefited may be assessed to the extent provided for in section six of this act, and the amount ama/rdedfor and hy reason of such discontinu,anoe or closing shall-he included in the amount of the expenses to he assessed upon the property benefited in said proceeding. From and after the making and filing of the order of the court instituting or consolidating said proceedings as aforesaid no further or other proceeding shall be taken relative to ascertaining and determining the compensation which should be made for such discontinuance or closing.”
It is contended by the learned counsel for the city that the sole purpose of this section was to enable the property owners and the • cRy to have the benefit of the knowledge and experience acquired by the commissioners in the street opening proceeding in making the award of damages and assessments on account of the closing of a street or avenue. This reason seems quite insufficient for such legislation and the explanation is not satisfactory. In the first place *191it will be observed that the only title of the proceeding is for a street opening, and a sound judicial discretion is vested in the court whether or not to embrace in the opening proceeding the making of awards and assessments for closing another street or avenue. It is thus manifest that it was only intended that the two should be embraced in one proceeding when the closing of the street or avenue might well be deemed a benefit to some or all of the property affected by the street opening proceeding. Furthermore, it would scarcely do to impute to the Legislature an intention to allow the judgment of the commissioners as to the damages and assessments on account of the closing of a street to be influenced by the evidence taken or knowledge acquired in the street opening proceeding which, according to the respondent, was the only purpose of this section. It is evident to my mind that the Legislature intended that the awards for street opening and for the closing of a street or avenue and the assessments for benefits for each should be joined as one proceeding when the circumstances are such as to clearly indicate that much or all of the property affected by one will be affected by tlie other. Moreover, by the express language of the section, which is free from ambiguity, the Legislature has declared that the assessments for the awards made for damages sustained by the closing of the street or avenue shall be included in the amount of the expenses to be assessed upon the property benefited in the proceeding. This clearly refers to the street opening proceeding. If, as contended by the respondent, it contemplates that such a union makes two proceedings and that this reference, lastly referred to, relates to the proceeding for determining the awards and making the assessment on account of the closing of a street or avenue, how is the language of the section, that the amount awarded on account of the discontinuance of. the street or avenue shall be included in the amount of the expenses to be assessed on the property benefited, given effect ? If the Legislature contemplated two proceedings under this section, why would this language be employed? Would it not have directed that the awards for damages for the closing and the expenses of that part of the proceeding should be assessed in a separate assessment roll? If it were intended that there should be two proceedings, in two reports or assessment rolls, why join them in one ? Furthermore, by the reference to section 6 of the *192act' it will be observed that the commissioners are left at liberty to assess upon the bed of the street or avenue closed the full amount of the benefit sustained by it without restriction. It was evidently contemplated that where there was a surplus of an award for part of a parcel taken for the street opening, over the benefit sustained by the remainder of the parcel, and the remainder of the parcel was also benefited by the closing, the latter benefits, should also be offset against the award and that the city should only be obliged to pay the owner, the surplus. On the other hand, if a particular parcel is benefited by the opening and damaged by the closing, the award for damages should be applied in satisfaction or reduction of the assessment..
. This was the practice, more clearly defined, for embracing in one proceeding awards and assessments for a street opening and for the closing of an adjacent street under chapter 213 of the Laws of 1818 (§§ 8, 9), after which it is evident that section 14 of the act of 1895 was framed. (See, also, Matter of John & Cherry Streets, 19 Wend. 674.) Under the mandatory provisions of section 14 of the act . of 1895 I think that the only report that" the court is authorized to confirm is one embracing all. the awards and" all the assessments. While it is unnecessary, as has already been observed, to decide the question now, I incline to the opinion,' and such, I think, is the effect of the opinion of the Court of Appeals, that it would ■ be both constitutional and valid to embrace all the assessments in one roll without itemizing the amounts separately assessed upon each parcel on account of the street opening proceeding and for damages for closing the street or avenue. I think the Legislature contemplated that in such circumstances both proceedings became merged in or consolidated into one, and that the whole is but a single improvement, and that the damages sustained by the entire iniprove- . ment may be embraced in one award' and that likewise the benefits sustained by the entire improvement may be assessed in one item upon each parcel. But if this should be impracticable or would render the assessments invalid, then the legislative mandate for one assessment roll may still be constitutionally complied with by this court laying down a rule that the commissioners in making the award shall state in their report, separately, the amount awarded as damages to each parcel for lands acquired for opening the street and for damages sustained by closing the.street or avenue,. and shall *193likewise in the assessment roll state separately the amount in which each parcel is deemed to be benefited by the opening of the street and by closing the street or avenue. Manifestly this is practicable. The report would thus show how the commissioners have'acted, and it could be readily seen whether in their judgment all of the property benefited by opening the street is benefited by the closing, and thus these respective questions would be as clearly and readily presented for review as if there were separate reports of awards and assessments.
I, therefore, vote for a reversal of this order.
Order affirmed, with ten dollars costs and disbursements.
Sic. — [Rep.