City of Newark v. Fischer, A--62

• Citation: 3 N.J. 488,21 A.L.R.2d 280,70 A.2d 733
• Decision Date: 16 January 1950
• Docket Number: No. A--62,A--62
• Parties: , 21 A.L.R.2d 280 CITY OF NEWARK v. FISCHER.
• Court: United States State Supreme Court (New Jersey)

Page 488

3 N.J. 488

70 A.2d 733, 21 A.L.R.2d 280

CITY OF NEWARK v. FISCHER.

No. A--62.

Supreme Court of New Jersey.

Argued Dec. 19, 1949.

Decided Jan. 16, 1950.

Walter Van Riper, Newark, argued the cause for the appellant. Frederick C. Vonhof, Newark, attorney.

Charles Handler, Newark, argued the cause for the respondent.

The opinion of the court was delivered by

BURLING, J.

This is an appeal from a judgment of the Superior Court, Appellate Division, affirming a judgment of the Division of Tax Appeals, Department of the Treasury, which reversed the Essex County Board of Taxation and restored an assessment of $77,200 on certain land and improvements thereon located in the City of Newark. Certification was granted by this court pursuant to a petition therefor by the appellants.

The sole question involved relates to the timeliness of an appeal made by the City of Newark to the Division of Tax Appeals from the judgment of the Essex County Board of Taxation.

The question arises in the following manner:

The taxing district of the City of Newark, as of October 1, 1946, assessed certain improved real property known as 2--20 Orange Street, Block 11, Lot 1, in the name of appellants in the amount of $77,200 for the tax year 1947. Legal title was in The Trustees for the Support of Public Schools of the State of New Jersey and the appellants were in possession under an executory contract for the purchase thereof. The assessment was made pursuant to R.S. 54:4--1, as amended by Chapter 242, Laws of 1946, N.J.S.A., effective May 1, 1946, which provides '* * * An executory contract for the sale of land, under which the vendee is entitled to or does take possession thereof, shall be deemed, for the purpose of this act, a mortgage of said land for the unpaid balance of purchase price. * * *'

On July 18, 1947, the appellants filed a petition of appeal with the Essex County Board of Taxation alleging that the assessment was improper and requesting that the assessment be cancelled. The petition referred to the assessment as being $79,200, whereas the assessment was $77,200.

On September 10, 1947, a hearing was held on said petition at which time the City of Newark pointed out to the County Board that the validity of an assessment against the same property for the year 1946 had been determined favorably to the City of Newark by the New Jersey Supreme Court on March 4, 1947, in litigation between the same parties. Norbet Corporation v. City of Newark, 135 N.J.L. 314, 51 A.2d 541 (Sup.Ct. 1947). That decision was later affirmed by the Court of Errors and Appeals on May 13, 1948. 137 N.J.L. 301, 59 A.2d 624 (E. & A. 1948). The County Board, nevertheless, filed a certificate of judgment granting a remittance of $79,200. The certificate of judgment was filed on October 30, 1947.

On November 14, 1947, the County Board, without further hearing or notice to the parties, filed a 'corrected certificate', the context of which was exactly the same as the original certificate, filed on October 30, 1947, with the exception that the amount remitted was stated to be $77,200, this latter sum being the actual amount of the assessment.

On December 8, 1947, the City of Newark filed a petition of appeal with the Division of Tax Appeals appealing from the County Board's judgment. On October 15, 1948, a motion was made to dismiss the petition of appeal, on the ground that it was not filed within one month of October 30, 1947, the date of the original judgment, as required by R.S. 54:2--39, as amended, N.J.S.A. This motion was denied on December 14, 1948, and the Division of Tax Appeals thereupon entered its judgment reversing the judgment of the County Board of Taxation and restored the assessment. On August 15, 1949, the Appellate Division affirmed the judgment of the Division of Tax Appeals. The present appeal is from the judgment of the Appellate Division.

The rationale of the Appellate Division's decision is that since the assessment was in the amount of $77,200, the County Board had no jurisdiction to grant a reduction in excess of that amount, that therefore the original judgment of October 30, 1947, remitting $79,200, was a nullity, that the only effective judgment was the corrected judgment of November 14, 1947, and that, accordingly, the City's appeal to the Division of Tax Appeals, under date of December 8, 1947, being within one month of the date of the corrected judgment, was timely taken.

We do not agree with the Appellate Division. R.S. 54:3--21, as amended, N.J.S.A., provides that appeals from assessments may be made to the County Board of Taxation on or before August fifteenth. R.S. 54:3--26, as amended, N.J.S.A., provides that the County Board shall hear and determine all such appeals, within three months after the last day for filing such appeals. R.S. 54:2--39, as amended, N.J.S.A., provides that an appeal from a judgment of the County Board may be made to the Division of Tax Appeals 'within one month from the date on which the county board of taxation shall have published the entry of judgment or within one month from...