Green v. Town of Irvington

• Decision Date: 02 April 1908
• Parties: GREEN v. TOWN OF IRVINGTON.
• Court: New Jersey Supreme Court

69 A. 485

76 N.J.L. 5

GREEN

v. TOWN OF IRVINGTON.

Supreme Court of New Jersey.

April 2, 1908.

Error to Circuit Court, Essex County.

Action by Francis S. Green against the town of Irvington. Judgment for plaintiff, and defendant brings error. Affirmed.

Argued November term, 1907, before GUMMERE, C. J., and BERGEN, J.

Adrian Riker, for plaintiff in error. Herbert Boggs, for defendant in error.

GUMMERE, C. J. The judgment under review was entered against the town of Irvington, in an action brought by the plaintiff under the provisions of the sixty-third section of an act providing for the formation, establishment, and government of towns. Gen. St. p. 3539. The purpose of the suit was to recover the value of a strip of land along the front of the plaintiff's lot, condemned by the town for the widening of Stuyvesant avenue, and the damage done to the remainder of the lot by the taking.

The first assignment of error challenges the right of the plaintiff to avail himself of this statutory remedy. This point was raised before the court below, but was there overruled, exception on the ruling being allowed. The scheme of condemnation provided by the statute requires the appraisal by the commissioners of assessment of the town of the value of the land taken, and the damage done by the taking; the report of their appraisal and award by the commissioners to the town council; the fixing by the council of a time and place for the hearing of objections to the confirmation of the report; the giving of public notice of such time and place; the presentation to the council by dissatisfied property owners, at the time and place designated, of their objections in writing; and final action upon the objections and the report of the commissioners by the council. The sixty-third section then provides that any person who shall have presented written objections to an award at the time and place designated in the notice, may, if he is dissatisfied with the determination of the council thereon, commence an action on contract against the town, which shall proceed in all things as if the town had, upon taking the real estate required for the improvement agreed in writing to pay therefor the value thereof, and the damage done by taking the same. In the present case the undisputed proofs showed that the time fixed for hearing objections to the commissioners' award was the 6th of June, 1905; that at that time the town council adjourned the hearing of objections to June 13th, and then to June 27th; that on the last-mentioned date, and not before, the plaintiff submitted written objections to the award, which were received and acted upon by the town council.

The argument now presented upon behalf of the town is that the requirement of the statute that the objections of a dissatisfied property owner shall be presented at the time and place fixed for the hearing, and specified in the notice, is a condition precedent to the right of such property owner to bring suit under the sixty-third section of the act, and that this condition must be performed in strict accordance with the letter of the act; that the plaintiff, in order to entitle him to the right to sue, was required to present his objections to the council at their meeting of the 6th of June; that his submission of them at an adjourned meeting was not a performance of the statutory condition, and did not put him in a position to avail himself of the right given by section 63. The acceptance by the town council of...