In re the Incorporated Village of Garden City

In a proceeding to acquire real property for a public use and to assess real property benefited by the improvement, under article 14 of the Village Law, claimant Ruth McKay appeals from so much of a final decree of the Supreme Court, Nassau County, entered May 14, 1965, as overruled her objections and levied a final assessment against her as owner of one of the assessment parcels. Decree reversed insofar as appealed from, on the law, with costs, and proceeding remitted to the Special Term for hearing and determination consistent with the memorandum herewith. No questions of fact have been considered. Appellant’s answer attempted to raise the issue as to the validity and legality of the Village Board of Trustees’ inclusion of her parcel, Assessment Parcel A-l, within the area of special benefit. It was struck out on the authority of section 280 of the Village Law. That section bars complaints with respect to inclusion within an assessment area unless made within 15 days after the filing of the apportionment and the assessment map. However, section 280 and its time-bar have no application in a proceeding brought under article 14 of the Village Law to acquire property for a public use. Sections 314 and 315 apply in such ease and they contain no tims limitation with respect to raising the issue concerning the board’s inclusion of property within the assessment area. We are of the opinion in view of those sections that this proceeding is the best place to determine the issues raised by the answer; and, since they are not time-barred, we remit for that purpose only. In view of this holding, we do not reach determination of the constitutionality of subdivision 18-b of section 89 of the Village Law, as amended. We agree with the learned Justice below that that issue is in any event premature. Christ, Acting P. J., Brennan, Hill, Rabin and Benjamin, JJ., concur.