In the Matter of the Petition of John J. Bradley to Vacate an Assessment

In the Matter of the Petition of John J. Bradley to Vacate an Assessment. (Argued June 29, 1883; decided October 2, 1883.) The assessment in question was for regulating, etc., Ninety-sixth street in the city of New York from the Boulevard-to the Hudson river. The following is the mem. handed down herein. “ So much of the grading of Ninety-sixth street as was done on the block between Eleventh avenue and Riverside avenue was done in accordance with the legally established grade. The petitioner ought, therefore, to bear his proportion of the expense of that work. The grading between Riverside avenue and Twelfth avenue was not in accordance with the legally established grade, but required less filling, and consequently cost less than if it had been done in _ accordance with the lawful grade, and, if the expense incurred were the only point involved, we should, in conformity with the decision in In re Mutual Life Ins. Co. (89 N. Y. 530), hold that the petitioner was not aggrieved by the change of grade and could not maintain this proceeding. But his complaint is that the change of grade between Riverside and Twelfth avenues was a material injury to his property, and this allegation was sustained by the proofs. He should not, therefore, be compelled to contribute to the expense of that part of the work. The number of feet of filling in that portion of the work appears from the papers, and it is quite practicable to apportion the expense. The order of the General Term which dismisses the petition of the appellant should be reversed, and the matter should be remitted to the Special Term to ascertain how much of the total amount of the assessment is for the work between Riverside avenue and Twelfth avenue, and to reduce the assessment accordingly, without costs to either party.” John C. Shaw for appellant. D. J. Dean for respondent. [MAJORITY — Rapallo, J.,] Rapallo, J., reads for reversal, etc., as appears by mem. above. All concur, except Andrews, J., absent. Ordered accordingly.