[1] I assume, although the papers presented do not clearly show it, that the objections which are now offered by the American Dock Company to the confirmation of the report of the commissioner of assessment were presented to the commissioner upon the filing of his preliminary abstract of report, as required by section 981 of the Charter, as otherwise they may not be considered by the court upon a motion for confirmation of the final report.
[2] Consideration of the grounds of objection leads me to the conclusion that the report ought to be confirmed. The area of assessment was determined by the board of estimate and apportionment, and it is settled law that in doing so the board performs a discretionary power conferred upon it by the Legislature, which the court will not undertake to review upon a motion for confirmation, but only in some direct proceeding against the board. In the present instance, moreover, the objector had a special hearing before the board and urged upon
[3] The rule is well settled that this court will not interfere with the report of the commissioner of assessment with respect to the amount assessed for benefit against property, unless it appear upon the face of the report that there is manifest error, or that the commissioner has fixed an amount which, as compared with that imposed upon the -other property, was clearly excessive. As was said by Justice O’Brien in Matter of Mayor, 85 App. Div. 347, at page 351, 83 N. Y. Supp. 433, 435:
“It must be remembered that in determining the amount to be awarded or assessed the commissioners have this advantage over the court, in that it is their duty to view the premises, and such duty, it appears in this instance, they performed. It would seem to follow, therefore, that for purposes of comparison as to the relative value of the different parcels involved the commissioners were in a much better position to make them than could the court [be?] from a mere inspection of the report. The appellant correctly states the rule established by the cases, that authority was given by the Legislature to the commissioners to determine the awards to be made and the ,damages to be assessed in these proceedings, and unless it is shown that there is an abuse of discretion, or that they were palpably wrong, or that there is manifest error, the court should not interfere. Matter of Brook Ave., 8 App. Div. 296 [40 N. Y. Supp. 949]; Matter of Eager, 46 N. Y. 100; Matter of Cruger, 84 N. Y. 619. The fact that the assessment may seem to be excessive is by no means conclusive, in the absence of proof directed to establishing it. In the absence, therefore, of evidence to support the claim * * * that the assessment on this parcel was excessive — and for this purpose we do not think that a comparison with other parcels not shown to have been similarly situated is sufficient — we do not think that the court was justified in interfering with the ■conclusion reached by the commissioners, who viewed the property and who, so far as their report shows, have not exceeded their discretion or committed manifest error."
Applying the rule just stated to the present case, I cannot subscribe to the statement in the brief of the learned counsel for the objecting party that “as between the various property owners the benefits are markedly, disproportionately, and unjustly assessed in the report.” The various parcels assessed are of greatly differing dimensions, conditions, and state of improvement, situation and value, and the commissioner has apparently laid the assessments upon each after consideration of the benefit to each to be expected from the improvement. In some instances this has led to a much lower assessment per square foot of area than that imposed upon the objector’s property; in others, the result is an assessment very greatly in excess of that laid upon that property. I fail to see how the result could have been otherwise, in view of the
If the objector’s property be considered as divided into city lots, the assessment levied on the tract would amount to about $27 a lot, not a very heavy charge when it is understood that the improvement was, according to the papers, advocated and urged upon the city by the objector for its own business advantage. The argument of inequality between the assessment of the objector’s property and that of the New York Terminal & Transit Company, each comprising both upland and land under water in different proportions, is fully met and answered by the difference in the character and situation of the two properties as pointed out in the brief of the corporation counsel.
The other grounds of objection stated do not require discussion.
The report is confirmed.