App. Div.] FIRST DEPARTMENT, JULY TERM, 1896. In the Matter of the Application of PHILIP BOHNET for a Peremp tory Mandamus. DAVID A. DOYLE, Appellant; THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK and Others, Respondents. - a per Peremptory mandamus compelling the removal of incumbrances from streets son aggrieved cannot, after the writ has issued, be made a party to the proceeding. Where a peremptory mandamus has issued, requiring city officials to remove certain incumbrances from the streets of a city, a third person, aggrieved thereby, is not entitled to be made a party to the proceeding. When the writ has issued the proceeding is terminated. APPEAL by David A. Doyle from an order of the Supreme Court, made at the New York Special Term, and entered in the office of the clerk of the county of New York on the 13th day of July, 1896, denying his application to intervene and be made a party respondent in the proceeding. James R. Fancher, for the appellant. Charles Blandy, for the relator, respondent. Terence Farley, for commissioner of public works and others, respondents. PER CURIAM: This proceeding was commenced to obtain a peremptory mandamus requiring the mayor, etc., of the city of New York, the commissioner of public works and the superintendent of incumbrances, to remove from certain of the public streets of the city of New York certain incumbrances described in the writ, and a peremptory mandamus was, upon the 28th of June, 1896, duly issued in accordance with the prayer of the petition. Subsequently, and on July 2, 1896, an order to show cause was obtained requiring the parties to that proceeding to show cause why an order should not be made directing that the appellant Doyle be made a party respondent therein, and this is an appeal from the order denying that motion. We think this order should be affirmed, upon the ground that when the motion was made no proceeding was pending to which the appellant could be made a party. The writ of mandamus had FIRST DEPARTMENT, JULY TERM, 1896. [Vol. 8. issued requiring the public officers to perform their duty, and the proceeding had terminated. If any one interfered with the rights of the appellant he had a remedy against the one so interfering; but it would be useless to make him a party to a proceeding which had terminated by the final order and the issuing of the writ of mandamus under it. The order appealed from is, therefore, affirmed, with ten dollars costs and disbursements. Present-BARRETT, RUMSEY, PATTERSON and INGRAHAM, JJ. In the Matter of Opening BROOK AVENUE from One Hundred and Sixty-fifth Street to Wendover Avenue in the City of New York. NEW YORK AND HARLEM RAILROAD COMPANY and Others, Appellants; MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Respondent. Street openings in New York city-the commissioners have a discretion as to the compensation and the area of assessment - an increased assessment, made necessary because other lands are partially exempt, is not illegal. The question as to the compensation to be awarded for property, taken by commissioners appointed to open a street in the city of New York, is within the control of the commissioners, and the court will not interfere with their honest judgment upon the subject. The Consolidation Act, as the same was amended in 1893, gives to such commissioners the power to fix the area of assessment, and the court will not interfere except in the case of a clear abuse of discretion or of manifest error. Where such commissioners have not assessed the lands in question beyond the amount of benefit which they have received from the improvement, it is not an objection, available to owners thereof, that their assessments have been increased by adding to them amounts which could not be assessed upon other parcels in the area of assessment, because the law forbids the assessment of these latter parcels at a greater amount than one-half of the value of the parcels as fixed by the tax commissioners. APPEAL by New York and Harlem Railroad Company and others from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of App. Div.] FIRST DEPARTMENT, JULY TERM, 1896. New York on the 8th day of January, 1896, confirming the report of the cominissioners of estimate and assessment appointed in the above-entitled proceeding. Truman H. Baldwin, for the appellants. John P. Dunn, for the respondent. PER CURIAM: This is an appeal from an order of the court at Special Term confirming the report of commissioners appointed in the aboveentitled matter. Certain objections were filed by William H. Morris, the New York and Harlem Railroad Company and the Farmers' Loan and Trust Company, executors and trustees under the will of Charles K. Beck, deceased. Conspicuous among these objections is one relating to the alleged insufficiency of the compensation awarded to each of the objectors for the damage sustained by them in consequence of the improvement; but we do not find that there is anything to impair the fairness or the honesty of the award made in this record, and it has been so frequently determined that the question of amount of compensation is so clearly within the conclusive control of the commissioners, and that the court will not interfere with their honest judgment upon that subject, that it is somewhat surprising that the question is constantly brought up, notwithstanding the fact that it has been so long and so thoroughly settled. (Matter of William & Anthony Streets, 19 Wend. 678; Matter of Broadway Widening, 63 Barb. 572; Matter of Boston Road, 27 Hun, 409; Matter of Wendover Avenue, 20 N. Y. Supp. 563.) The attempt made in this case to impugn the fairness of the action of the commissioners is altogether futile and without any reasonable ground to sustain it. We are to consider only such objections, therefore, as are urged in connection with the principle upon which the awards were made, and to ascertain whether there has been any violation of the law whereby the rights of either of these appellants have been impaired. The three sets of objections upon being analysed may be grouped as follows: (1) That the area over which the assessment has been extended by the commissioners largely exceeds the area of the property actually benefited by the improvement; (2) that, as to some of the land of the appellants, the FIRST DEPARTMENT, JULY TERM, 1896. [Vol. 8. assessment for benefit has been much augmented in consequence of certain other lands within the area of the assessment being assessed at only fifty per cent of the value of such other lands as ascertained and fixed by the tax commissioners; (3) that some of the lands of the appellants have been assessed at more than one-half of their value, as such value has been ascertained and fixed by the commissioners of taxes of the city of New York. These are objections which apply to the principle upon which the commissioners in this proceeding acted, and are, therefore, properly before the court. The Concerning the first objection, as those objections are grouped, it is evident that the commissioners acted in accordance with the provisions of the acts of 1893 (Chap. 267 and chap. 660) amending the Consolidation Act. By the 2d section of chapter 267 of the Laws of 1893, section 958 of the Consolidation Act was amended so as to provide with reference to certain improvements: "That the said commissioners of estimate and assessment, who may be appointed as herein provided, shall not be limited as to the area of assessment by any of the provisions of the act hereby amended, but may assess for such opening all parties and persons, lands and tenements, as they may deem to be benefited by such improvement, to the extent which said commissioners of estimate and assessment being such parties, persons, lands and tenements benefited thereby." word "being" is evidently a clerical error, and the word "deem" is meant. By the 5th section of chapter 660 of the Laws of 1893, section 970 of the Consolidation Act is amended so as to provide that, in making the estimate of damage and benefit, the commissioners should not be circumscribed within any definite limits, "but they shall and hereby are authorized to extend such estimate and assessment to any and all such lands, tenements and hereditaments and premises as they may deem to be benefited by the operation." Authority was, therefore, given by the law to these commissioners to fix the area of the assessment; and unless it is shown clearly that there is some abuse of their discretion, or that they are palpably wrong, or that there is a manifest error, the court should not interfere. It seems there were sixty parcels of land included within the area of assessment that could not be assessed under the provisions of the law at more than one-half of the value fixed by the tax commissioners. App. Div.] FIRST DEPARTMENT, JULY TERM, 1896. Concerning the second objection, it is claimed that the assessment upon the appellants' lands have been increased by so much of the total amount of assessments as the commissioners in this proceeding were unable to charge upon these sixty pieces by reason of the limitation referred to. It is not made to appear distinctly that the appellants' iots have borne a part of this burden, but we assume that that must necessarily have been the case. The objection now under consideration was distinctly raised and passed upon in The Matter of Wendover Avenue (48 N. Y. St. Repr. 868), and we are not able to see in this case that the commissioners have increased the assessment beyond the amount of benefit received by the appellants' lands as the result of the improvement. As to the third objection. This involves considerations of fact. It is said that the assessment on blocks 2392 and 2394 exceeds onehalf of the tax valuation of the Brook avenue halves of those blocks and the benefit to the Webster avenue halves thereof, and should be vacated or reduced. We have looked into the record and the evidence before the commissioners sufficiently to enable us to say that we cannot declare that they were clearly in error respecting their conclusions on this subject. It is for the objectors to show that they have been assessed more than one-half the value of their lands as fixed by the tax commissioners; and taking into consideration all the elements of fact involved, as they are discussed in the briefs of counsel on both sides, we are unable to say that, either with reference to the property of the Beck estate or of the New York and Harlem railroad, or of Mr. Morris, the commissioners have violated the section of the statute relating to this subject. The order confirming the report of the commissioners is affirmed, with costs. Present― BARRETT, RUMSEY, PATTERSON and INGRAHAM, JJ. The order confirming the report of the commissioners affirmed, with costs. |