Etz v. Perlman

• Decision Date: 09 November 1928
• Citation: 143 A. 548
• Parties: ETZ et al. v. PERLMAN et al.
• Court: New Jersey Court of Chancery

143 A. 548

ETZ et al.

v. PERLMAN et al.

Court of Chancery of New Jersey.

Nov. 9, 1928.

(Syllabus by the Court.)

Suit by Jacob H. Etz and others against George J. Perlman and another. Bill dismissed.

Josephson & Josephson, of Trenton, for complainants.

Perlman & Lerner, of Trenton, for defendants.

BUCHANAN, Vice Chancellor. Complainants sue to foreclose a mortgage given to secure bond to pay $17,000 in three years, which have not yet expired. The bond provides for acceleration of maturity for default in payment of interest or taxes. The issue is as to whether or not complainant has proved such default. The provision of the bond is. that, if "any tax * * * be hereafter imposed * * * (upon the mortgaged premises) * * * and become due and payable * * * and remain unpaid and in arrears for the space of sixty days," then the principal sum shall become immediately due and payable.

The facts are not in dispute. Taxes for the year 1928 were imposed on the mortgaged premises. The first half of such tax was paid on, and not until, July 16, 1928. Complainants contend that this first half of the tax was in arrears from and after April 1, 1928, and hence remained in arrears for more than 60 days. Defendants contend that it did not become in arrears until after June 1, 1928, and hence that the default or delay in payment was for only 45 days, and that the complainants had no right to accelerate the maturity of the principal of the bond.

The act for the assessment and collection of taxes (P. L. 1918, c. 236, § 602, as amended by P. L. 1920, c. 224, § 1) provides:

"602. Taxes, except the poll tax, shall be payable one-half of the amount thereof on the first day of April, which if not paid on or before the first day of June will become delinquent on that date, and the taxpayer or property assessed will be subject to the penalties hereinafter prescribed. The remaining half of said taxes shall be paid on or before the first day of December, after which date, if unpaid, they shall become delinquent and the taxpayer or property subject to the same penalties."

It will be observed that, although this section says the first half of the taxes shall be "payable" on April 1st, it is not delinquent until June 1st. The penalty of interest for nonpayment is imposed only for failure to pay on or before June 1st. See section 603. There is no provision in the statute which gives the municipality any right to insist on the payment before June 1st, or which imposes any...