App. Div.] being estopped, as these can all be left for determination upon the new trial. Upon the ground, therefore, that as to two of these plaintiffs, Struppmann and Kilblock, they are estopped by having received. upon the sale of the land the defendants' money and should not be permitted to prosecute this action in ejectment, the exception to the direction of a verdict in plaintiffs' favor should be sustained and the motion for a new trial granted, with costs in favor of the defendants and against the plaintiffs Struppmann and Kilblock to abide event. VAN BRUNT, P. J., PATTERSON and MCLAUGHLIN, JJ., concurred; LAUGHLIN, J., concurred in result. Exceptions to the direction of a verdict in plaintiffs' favor sustained and motion for new trial granted, with costs in favor of defendants and against the plaintiffs Struppmann and Kilblock to abide event. In the Matter of the Application of THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Relative to Acquiring Title, Wherever the Same Has Not Been Heretofore Acquired, to the Lands, Tenements and Hereditaments Required for the Purpose of Opening East One Hundred and Seventy-sixth Street (Although Not Yet Named by Proper Authority) from Monroe Avenue to Tremont Avenue, as the Same Has Been Heretofore Laid Out and Designated as a First-class Street or Road, in the Twenty-fourth Ward of the City of New York. THE CITY OF NEW YORK, Appellant; CHRIST CONGREGATIONAL CHURCH, MOUNT HOPE, NEW YORK CITY, and WILLIAM MCNABB, Respondents. Statute exempting a corporation from any assessment levied for a stated time—when an assessment is levied — modification of such an assessment on appeal — what must be shown to justify it. Section 1 of chapter 618 of the Laws of 1896, which provides, "The real estate owned by any religious corporation actually dedicated and used by such corporation exclusively as a place of public worship in the twenty-third and twenty-fourth wards of the city of New York shall be exempt from all FIRST DEPARTMENT, JULY TERM, 1903. [Vol. 85. assessments for public improvements which are now levied and assessed against such real estate, or which may hereafter be levied and assessed against such real estate during three years from January first, eighteen hundred and ninetysix," cannot be construed as granting an exemption from assessments for such public improvements as were authorized and begun during the three years from 1896, but only as granting an exemption from such assessments for local improvements as were actually levied within that period. Consequently, where street opening proceedings were instituted and the title to the lands taken in the proceeding vested in the city during the period covered by the exemption, but the assessment was not actually levied until after the expiration of the exemption, a religious corporation, entitled to the benefit of the act, is not relieved from the obligation of paying an assessment levied upon it in the proceeding. An assessment levied in such a proceeding can, in no event, be deemed to have been levied prior to the signing of the preliminary estimates of the commissioners of estimate and assessment, and it is doubtful whether it can be regarded as legally assessed and levied prior to the signing of the final report. Upon a motion to confirm the report of commissioners of estimate and assessment appointed in a proceeding to open a street in the city of New York, the Special Term is not justified in reducing the amount of an assessment, unless it appears upon the face of the report that there is a manifest error, or that the commissioners have fixed an amount which, as compared with that imposed upon the other property, is clearly excessive. A comparison of the parcel in question with other parcels not shown to have been similarly situated, is not sufficient to show that the assessment imposed on the parcel in question is excessive. APPEAL by The City of New York 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 11th day of February, 1902, denying a motion to confirm the report of commissioners of estimate and assessment appointed herein, and referring back said report for revisal and correction. John P. Dunn, for the appellant. Theodore H. Friend, for the respondent Christ Congregational Church. Charles Strauss, for the respondent William McNabb. O'BRIEN, J.: This is a proceeding instituted by the city authorities to acquire lands for the purpose of opening East One Hundred and Seventysixth street from Monroe avenue to Tremont avenue. The usual proceedings were had and the commissioners of estimate and assess App. Div.] FIRST DEPARTMENT, JULY TERM, 1903. ment were appointed, the board of street opening and improvement having determined that the entire costs and expenses should be assessed upon the property deemed to be benefited. The preliminary abstract of awards and assessments is dated April 7, 1899, and was filed May 10, 1899. The final report of the commissioners was dated November 8, 1901. The court at Special Term sustained two objections to the final report, one interposed by the Christ Congregational Church as to parcel benefit No. 86 on the ground of its exemption under chapter 618 of the Laws of 1896, and the other by William McNabb as to parcel benefit No. 89 on the ground that the assessment against a part of his property was excessive. With respect to the objection to the assessment against the church it appeared that pursuant to the resolution of the board of street opening and improvement the title to the lands and property taken in this proceeding vested in the city of New York on November 1, 1897. Section 1 of chapter 618 of the Laws of 1896 reads as follows: "The real estate owned by any religious corporation actually dedicated and used by such corporation exclusively as a place of public worship in the twenty-third and twenty-fourth wards of the city of New York shall be exempt from all assessments for public improvements which are now levied and assessed against such real estate, or which may hereafter be levied and assessed against such real estate during three years from January first, eighteen hundred and ninety-six." To gain the benefit of the exemption contained in this act it was thus necessary for the church to show that the assessment was "levied and assessed" within or prior to the period fixed by the act of 1896. The point here is, at what date was the assessment levied and assessed against the church? We do not think that the assessment was levied prior to the signing of the preliminary estimates of the commissioners, which was on April 7, 1899; and it is doubtful if it could be regarded as legally assessed and levied prior to the signing of the final report, which was on November 8, 1901. Whichever date, however, we fix upon, it was after the benefit conferred by the act of 1896 had ended, which, by the terms of the act, expired on January 1, 1899. To sustain the position of the respondent church, therefore, it will necessary to construe the statute as granting an exemption from be FIRST DEPARTMENT, JULY TERM, 1903. [Vol. 85. assessments for such local improvements as are authorized and begun during the three years from January 1, 1896. This court, however, is committed to the view that it is the law in force when the assessment is levied that governs. Thus it was said in Matter of Mayor (46 App. Div. 52): "It is difficult to see what relation the date of the commencement of a proceeding or the time at which the property taken under the proceeding vests in the city has to the assessment upon the adjacent property benefited by the improvement.” (See, also, Matter of Whitlock Ave., 51 App. Div. 436; Matter of Mayor, 40 id. 452; Matter of East 175th Street, 49 id. 114.) Moreover, the language of the statute itself will not bear any such interpretation, and it will not do, for the purpose of sustaining an exemption from taxation, to depart from the fixed and settled meaning of the language employed in the act. "Taxation is the rule, with every presumption to support it, while exemption is an exception, with every presumption against it." (People ex rel. Metropolitan St. Ry. Co. v. Tax Comrs., 174 N. Y. 448.) The fact, therefore, that proceedings were instituted and title to the lands vested in the city during the time when the exemption under the act of 1896 was in force, does not entitle the church property to the benefit of its provisions inasmuch as the assessment was not levied until after the exemption had ceased. We think, therefore, that the learned Special Term was in error upon the facts here appearing in construing the statute so as to exempt the church property from assessment. With respect to the property of McNabb, parcel benefit No. 89, it appears that the proposed assessment in the preliminary estimate was $1,994.35, but was reduced by the commissioners in the final report to $1,256.15. To this latter sum objections were made and sustained by the Special Term on the ground that it was excessive; but we think that a brief statement of the facts will show that the conclusion thus reached was also erroneous. The property in question is situated on the west side of Clay avenue about 25 feet from the improvement with a frontage of 100 feet on the avenue and a depth on the northerly boundary line of 153.97 feet and on the southerly line of 169.46 feet and contains about six and six-tenths city lots of 2,500 square feet. It was claimed by the objector that the highest expert valuations placed on the property in these proceed App. Div.] FIRST DEPARTMENT, JULY TERM, 1903. ings was $3,000 for lots with 25 feet front which would, without taking into consideration the value of the land in excess of 100 feet in depth, bring this property, assuming that it was equal to the most valuable of the land taken, to a value of at least $12,000. We have examined the other parcels included in the area of assessment and their situation and relation to the improvement and find no particular piece of the same dimensions or similarly located with which an exact comparison can be made. Nor do we think that the court is justified in interfering with the conclusion reached by the commissioners, unless upon the face of the report there was a manifest error, or it was apparent that the commissioners had fixed an amount which, as compared with that imposed upon the other property, was clearly excessive. 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 from a mere inspection of a 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 Avenue, 8 App. Div. 296; Matter of Eager, 46 N. Y. 100; Matter of Cruger, 84 id. 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 of McNabb 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. |