This proceeding was before this court on a former appeal (138 App. Div. 252) when the- matter was sent back' to the commissioner for a supplemental report. The commissioner having made the-return required, it was confirmed at Special Term, ánd the property owners appeal.
The question arises under section 980 of the charter of the city of New York (Laws of 1901, chap. 466, as amd. by Laws of 1909, chap. 394). That section provides: “ The' commissioner of assessment shall in making his estimate and assessment of the valué of the benefit and advantage of the said improvement assess any and all such lands, tenements, hereditaments and premises within the area or areas of assessment fixed and prescribed by the board of estimate and apportionment as tile area or areas of assessment for benefit in proportion to the amount of benefit received. * * •* The said commissioner of assessment shall in.no case assess any house, lot, improved or unimproved lands, more than one-half the value of such house, lot, improved .or unimproved land,'as valued by him.”
Upon the former appeal the report of the commissioner was sent *725back to him for his determination as to the date at' which he valued the property. He has now reported that he valued each piece, of property assessed by him as of the date of his report, to wit, May 24, .1909, and, in making such valuation, that betook into consideration the enhancement in value of such property by reason of this improvement and that in no case does the assessment for benefit exceed one-half the value of the property assessed as valued by him.
I do not think that under section 980 of the charter the commissioner was authorized in valuing the property within the area of assessment to consider what' it will be worth after the improvement fof which the assessment is imposed is completed. Before the improvement the property must be presumed to have had a definite value. That the property would be benefited by the improvement must also.be assumed and such benefit was to be paid for by imposing an assessment upon the property so benefited. The amount of that assessment had to be determined by the- commissioner of assessment, but he was prohibited from imposing upon any piece of property an assessment in excess of one-half of the' value of the property. It seems to me that it is a violation of this provision to increase the value of the property which is to be 'assessed as it was at that time, by adding to it the increased value caused by the improvement for which the property is to be assessed. What the commissioner has done is to value the property, add to that value the improvement for which the property is bhargeable and which its owner has to pay for, and fix that as the value of the property at the time the assessment is made. I think the value of the property when the commissioner makes the valuation is not as benefited by the actual improvement for which the owner still has to pay, but is the value of the property without such improvement; and I, therefore, think the report should be sent ■ back to the commissioner to value the property as of the time he made the assessment, and not as of the time when the assessment imposed upon it has been paid.
The question here presented was not before the court in Matter of Mayor (46 App. Div. 52). What we held there was that the value must be fixed by the commissioners at the time the assessment for benefit was imposed upon the property, and not at the time when the commissioners fixed the value of the property *726to be taken for the improvement. I appreciate the fact that a different view was taken by the Appellate Division in the Second Department in Matter of City of New York, Avenue D (122 App. Div. 416); but on appeal to the Court of Appeals in that case (192 N. Y. 575), the order -was affirmed upon the ground that tire question whether the commissioners exceeded the limits prescribed' was not presented by the record, the' Court of Appeals thus leaving the question now under consideration open.
I dissent, therefore, from an affirmance of this order..
Order affirmed, with ten dollars costs and disbursements.