City of Newark v. Smith
| Decision Date | 15 March 1938 |
| Docket Number | No. 262.,262. |
| Citation | 197 A. 718,120 N.J.L. 56 |
| Parties | CITY OF NEWARK et al. v. SMITH, Judge, et al. |
| Court | New Jersey Supreme Court |
Certiorari proceeding by the City of Newark and the Commissioners of Assessments for Local Improvements of the City of Newark against William A. Smith, Judge of the Essex County Circuit Court, and another, to review an order which vacated an order of confirmation and which remanded the matter to the assessment board for revision and correction of the assessment after a hearing on notice to the petitioner.
Order reversed.
Argued May term, 1937, before BODINE, HEHER, and PERSKIE, JJ.
Frank A. Boettner, of Newark (Vincent J. Casale, of Newark, of counsel), for prosecutors. Wall, Haight, Carey & Hartpence, of Jersey City (Frederick Groel, of Newark, and George G. Tennant, Jr., of Jersey City, of counsel), for defendants.
The Commissioners of Assessments for Local Improvements of the City of Newark, after hearing had upon notice to the parties in interest, certified to the Essex circuit court their assessments for benefits ensuing from the widening of Mulberry street, in the city of Newark; and on December 2, 1932, Judge Mountain, by formal order, fixed December 9, 1932, as the time for the hearing of objections thereto, and directed that notice thereof be given to the affected property owners by publication "in at least two of the official papers of the City of Newark, for five successive days prior to such date." The prescribed notice was published on December 3, 5, 6, 7, and 8, 1932. There was no publication on Sunday, December 4. The statute provides that the circuit court "shall cause such notice to be given as it shall direct." Pamph.L.1925, c. 72, pp. 239, 242, § 3, R.S.1937, 40:56-62, Comp. St.Supp.1930, § *136 —2064.
The hearing was held at the time so designated, and the report of the assessment commissioners was confirmed, except as to certain owners who appeared and entered objections; and it was ordered to be transmitted, with the order of confirmation, to the Comptroller of the City of Newark.
No objection to the report was submitted on behalf of the City Bank Farmers Trust Company, as substituted trustee of the estate of James Herbert Ledwith, deceased, the owner of two lots so assessed. The claim is that it did not have actual notice of the hearing thus scheduled. On June 3, 1936, it presented a verified petition to the circuit court, setting forth, inter alia, that no benefits had accrued to its lands by reason of the improvement, and the assessment was therefore "improperly made"; that, "despite the provision of the statute" adverted to, no notice of the hearing on the confirmation of the assessors' report, "other than by publication, was given" to it; that by reason thereof it was deprived of a right secured by the statute to object to confirmation of the report; that it had "neither notice nor knowledge" of the confirmation of the assessment until July 26, 1935; and that it had ever since been engaged in efforts to "adjust the lien of the assessment" with the municipality, but without result. It was established by an attached affidavit that it did not receive actual notice of the original hearing before the commissioners for the purpose of making the assessment. Notice of this hearing was addressed to "J. Herbert Ledwith c/o City Meat Market, 103 Mulberry Street, Newark, New Jersey," although Ledwith died on August 16, 1910. But counsel for the landowner concedes the "point is not an issue in this case." There were prayers for a vacation of the order of confirmation and a remand of the matter to the assessment board for revision and correction. Upon the hearing of an order to show cause made thereon, the order of confirmation was vacated in so far as the petitioner's lands were concerned, and the matter was remanded to the assessment board for "revision and correction," after a hearing on notice to the petitioner. The proceedings are here on certiorari sued out by the city and the assessment commissioners.
We think the order so made is coram non judice. The prescribed statutory notice of the hearing on the confirmation of the report was given to the landowner, and...
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