IN RE ELIZABETH AVENUE ASSESSMENT.

(Union Co. Common Pleas, Jan., 1922).

Assessment for Repairing Street—Method Employed—Method Suggested

In re appeal from assessment for repairing Elizabeth Avenue from Front street to Seventh street, Elizabeth.

Mr. Alfred S. Brown, Appellant, in person.

Mr. Joseph T. Hague, for City of Elizabeth.

PIERCE, J.: This is an appeal from an assessment for repaving with granite blocks that portion of Elizabeth avenue, Elizabeth, extending from a point about 150 feet east of Front street to Seventh street. The error complained of is inequality as compared with other assessments.

Appellant is the owner of a triangular lot of land lying between Elizabeth and First avenues, at their intersection at Liberty Square; the lot is bounded northerly 350 feet on Elizabeth avenue, easterly 31 feet on Liberty Square, southerly about 350 feet on First avenue, and westerly 133 feet on abutting property; the lot is vacant except for an old house at the southwest corner fronting on First avenue.

The general method of assessment adopted by the Commissioners was as follows: From the whole cost of the improvement, $220,330.56, was deducted $23,127.29, paid by the Public Service Company for repaving its trolley tracks, leaving $197,203.27, of which one-half was assumed by the City and the other half assessed upon abutting property, being at the rate of $8.82 per linear front foot. The Commissioners adopted this linear front-foot rate as the bases of the assessment, and imposed it upon all lots one hundred feet deep; short lots were given concessions assumed by the City, viz., 12-1/2 per cent. off where the lot was 50 feet deep, 18-3/4 per cent. off where the lot was 25 feet deep, and in that proportion. The Commissioners determined that as to all the lots the assessment was less than the value of the lot, and less than the benefit conferred, but gave no consideration as to the relative value of the lots as between themselves.

In assessing appellant’s triangular lot the following method was adopted: The lot was divided lengthwise by an imaginary line into two equal parts, one fronting on First avenue and the other on Elizabeth avenue. The part on First avenue was not assessed. The part on Elizabeth avenue was assessed at the regular rate of $8.82 for its 350 feet frontage, a total $3,087.00, less three concessions: a concession of 12-1/2 per cent. ($110.25) was allowed on the westerly 100 feet averaging fifty odd feet deep; a concession of 20 per cent. ($441.00) was allowed on the remaining 250 feet averaging thirty odd feet deep; and a concession of 25 per cent. ($68.35) was allowed for the 31 feet fronting on Liberty Square. Total concessions, $619.61, leaving $2,467.40 as the assessment levied. In addition to the concessions the Commissioners made no assessment against the lot for its frontage on Liberty Square.

The result reached by the Commissioners was to assess a lot 350 feet in front on Elizabeth avenue, 15-1/2 feet deep at one end and 66-1/2 at the other, nearly four-fifths as much as though the entire frontage had been full lots 100 feet deep. This is unreasonable and I think more than appellant’s entire lot should be assessed.

I think the Commissioners erred in two respects in their method of assessment:

1. It was improper to divide appellant’s lot lengthwise for the purpose of assessment. The lot was already too shallow for the greater part of its frontage for ordinary building purposes, and to divide it further was to leave two narrow strips, one fronting on Elizabeth avenue and the other on First avenue, neither of any sale value, or practical value for any purpose.

It was held by the Court of Errors and Appeals in Aldridge v. Essex Road Board (51 N. J. L. 166) that assessors may not divide a lot for the purpose of assessment so that, should a sale result to collect the tax, the property would not bring as much as if sold as part of the original parcel. The rule was followed in Coward v. North Plainfield (63 N. J. L. 61), where, as in the case at bar, an imaginary line was drawn midway between two avenues.

2. I think the Commissioners erred also in disregarding the relative benefit received by lots along the line of the improvement resulting from location and value of the property. The assessment was strictly a front-foot assessment with concessions for short lots, but disregarding the element of location and relative value.

The 4th Ward assessment roll received in evidence shows substantial variations in the value of properties on Elizabeth avenue, and inspection of the line of improvement about a mile in length shows greater traffic and better building and values toward Seventh street than opposite and below appellant’s lot. The intersection of Elizabeth avenue and High street, a few feet West of Seventh street, is a business center for that part of the City, and values and traffic are materially greater in that vicinity than below Third street. It is manifest that business houses dependent upon traffic for their business are more benefited by a paving improvement than vacant lots at a distance where there is less traffic.

It is well settled in New York that the relative value of lots and the buildings upon them must be considered in determining the benefits accruing from a paving improvement (Donavan v. Oswego, 39 Misc. 291, and cases therein cited); and in State v. Rahway (39 N. J. L. 646; affirmed by the Court of Errors and Appeals in 11 Vr. 615) a greater assessment upon lots nearer a business center was approved in a grading, curbing and guttering improvement.

The statute provides that “all assessments ... levied for any local improvement shall in each case be as near as may be in proportion to the peculiar benefit, advantage or increase in value which the respective lots and parcels of land and real estate shall be deemed to receive by reason of the improvement.”

Under the circumstances existing in the case at bar, there being, as I find, a difference in benefit along the line of the improvement resulting from location and value, these elements should have been considered by the Commission and such weight given them as in the judgment of the Commissioners they should receive.

In reassessing appellant’s lot I suggest a different ratio of concessions for short lots. The concessions adopted by the Commissioners are one-half the concessions allowed by the Newark, or Hoffman rule, in valuing short lots in regular assessments. As evidenced by the result reached in the assessment appealed from, the concessions are inadequate, and I see no reason why the full concessions established by the Newark rule should not be adopted.

It is not easy to formulate a rule that will do justice in all cases in assessing irregular shaped lots, but I think a fair result would be reached in the case at bar by deducting from the frontage assessment of $3,087.00 a concession of 25% ($771.00) for the frontage and probable future paving assessment on First avenue; a further concession at the rates given by the Newark Rule for that portion of the lot under 100 feet in depth (20%—$441.00), less the added value under the same rule for that portion over 100 feet in length (7%—$61.74) net $379.26; total net $1,936.74; less such further concession for less than average benefit received by appellant’s lot as in the judgment of the Commissioners should be allowed by reason of inferior location, value and improvements.

As appellant’s lot is not assessed for paving Liberty Square, no concession should be made for frontage on Liberty Square.

For the reasons given, the assessment appealed from should be set aside as to appellant’s lot.

Inexcusable delay in presenting a check for payment is held to discharge an indorser from liability thereon if the check is not paid, whether he is in fact injured or not, in the West Virginia case of Nuzum v. Sheppard, 104 S. E. 587, annotated in 11 A.L.R. 1024.