The special act (Laws of 1896, chap. 727), under which this proceeding was instituted, it is true, contains no express provision pre*554scribing that notice shall be given to the owners of lands to be assessed for benefits; but it refers to the general provisions of law relating to proceedings for opening streets in the city of New York, which provide for notice in such cases (see Consol. Act [Laws of 1882, chap. 410], §§ 958-1005, as amd.) and makes them applicable ; and that is sufficient. (Choate v. City of Buffalo, 39 App. Div. 379; affd., 167 N. Y. 597.) The sufficiency of the law, if it contains such reference, is conceded in the opinion of Mr. Justice McLaughlin ; but he contends that the reference to the other provisions of law relates only to those provisions regulating the steps and proceedings to be taken in acquiring the land. I am of opinion that the making and collection of an assessment for benefit, which is the method prescribed by the Legislature for raising part of the money with which to pay for the lands to be acquired, constitute part of the steps and proceedings in acquiring the title, within the fair intent of the Legislature in enacting the special statute.
It is provided in section 3 of the special act that, the title shall vest in the city when the commissioners of estimate and assessment. take and file their oaths of office. The only theory noon which a statute providing that title shall pass before the owner is paid can ' be deemed constitutional is, that ample provision has been made by law for ascertaining and insuring the payment of the compensation to which the owner is entitled. Here, the scheme upon the part of the respondents is to put the burden of this entire proceeding upon the general taxpayers; whéreas, as the Legislature, viewed it, the taking of lands for Riverside Park was a special benefit to the adjacent property; and manifestly this is so, and such property should in all fairness contribute more towards the expense of the proceeding than property remote from the improvement. If the construction of the law contended for by the respondents be sustained, it is doubtful whether any of the act is valid, for the reason that in that view complete provision would not be made for. the payment of the awards. It cannot be successfully contended that the Legislature did not intend that the commissioners of estimate and assessment should make an assessment for benefit. It is expressly provided in the 4th section of the act that three-fourths of the aggregate of the awards for damages,- with interest and the costs and expenses of the proceedings, shall be borne by the taxpayers at' large - and one-*555fourth by the property specially benefited by the improvement to be assessed by the commissioners.
There is a manifest error in the direction of the assessment, whereby it is erroneously stated that the amount to be assessed is one-third / whereas, in accordance with the preceding provision, it should be one-fourth of the total of the awards, interest, costs and expenses. The statute should be construed as if the direction for making the assessment specified the amount as one-fourth, in accordance with the preceding provision. Unquestionably a tax or assessment cannot be levied without notice, but it is for the Legislature to prescribe the kind of notice and how the same shall be given, whether by publication or otherwise. (Stuart v. Palmer, 74 N. Y. 183.) This has long been the settled law of the State. It is well known to" the bar, and was presumably known by the members of the Legislature, where the question of framing statutes of this nature to avoid constitutional objections frequently arises.
To hold that the Legislature did not intend, by the reference to the other statutory provisions, to make those relating to the levying of local, assessments applicable to the assessment directed to be made in this proceeding would be to impeach the intelligence of the .legislators, for it would imply that they supposed that a valid assessment could be levied without any notice or hearing to the owners of the property assessed upon the question as, to whether their lands were in fact benefited or as to the amount of benefits. The language employed in the act is fairly susceptible of the construction that the Legislature intended that the general provisions of law applicable to street opening proceedings and to assessments should be applicable. Section 1 of the act describes the lands to be taken and section 2, after imposing the duty on the corporation counsel of instituting the proceedings, provides as follows: “ Except as provided in this act, all provisions of law relating to the taking of private property for public streets or places in said city are hereby made applicable so far as the same may be necessary for the acquiring of said land as aforesaid.” When it is remembered that under the general statute to which reference is made, the eminent domain and assessment proceedings are conducted as one, I think it is very clear that this provision relates to the steps required to be taken to make and collect assessments with which to defray part of the *556awards, interest, costs, and expenses, as well as the steps with reference to ascertaining the damages sustained by property owners in consequence of the taking of their lands.
■ One-third of the total amount has been assessed, instead of one-fourth. I am, therefore, of opinion that the order should be reversed, without costs, and the assessments should be reduced by the difference between one-third and one-fourth of the total amount of awards, interest, costs and expenses; and as so modified the report should be confirmed.
Van Brunt, P. J., and O’Brien, J., concurred; Ingraham and McLaughlin, JJ., dissented.