On the 8th day of March, 1907, West One Hundred and Sixty-third street had been acquired for and was in use as a public street both easterly and westerly of a triangular block of land bounded on the north by West One' Hundred and Sixty-fourth street, on the east by Amsterdam avenue and on the west by St. Nicholas avenue, and with its apex just north of West One Hundred and Sixty-second street; and on that day the board of estimate and apportionment duly determined to acquire the lands necessary to continue One Hundred and Sixty-third street through this triangular block and determined the area for assessment of benefit, and instructed the corporation counsel to take the necessary proceedings by applying for the appointment of commissioners of estimate and a commissioner of assessment. . The three commissioners of estimate duly determined the amounts to be awarded to the owners of the two parcels taken, and them report was duly confirmed and no appeal
The theory upon which the court has refused to confirm the report and has returned it to the commissioner of assessment is, that considering the award made to the respondents the assessments were excessive. As we had occasion to point out in Matter of City of New York, West 157th Street (150 App. Div. 131) the commissioner who makes the assessment for benefit acts separately and wholly independent of the commissioners in making the awards. The commissioner of assessment enters upon his duties with the awards made and the total amount to be assessed upon the prescribed area conclusively fixed and determined. The duty devolves upon him of determining the amount of benefit to every parcel of land within the area of assessment for benefit and assessing it therefor, or in other words of apportioning the total amount among the parcels in proportion to the benefits received. Although under the law as it now exists in the city of Greater New York the commissioner of assessment is one of the three commissioners who make the awards (Greater N. Y. Charter [Laws of 1901, chap. 466], § 973, as amd. by Laws of 1906, chap. 658, § 3, and Laws of 1910, chap. 336, § 2), yet, that is quite immaterial* for he is required to act as a commissioner to assess the benefit as if he had taken no part in making the awards, or as if the awards had been made by other commissioners. The assessment on the remaining lands of the respondents should be the
It follows that the order should be reversed, with costs, and the motion to confirm the report of the commissioner of assessment granted, with costs.
Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred.
Order reversed, with costs, and motion to confirm report of commissioner granted, with costs.