Morris & Cummings Dredging Co. v. Mayor

• Decision Date: 15 June 1908
• Citation: 76 N.J.L. 573,70 A. 134
• Parties: MORRIS & CUMMINGS DREDGING CO. v. MAYOR, ETC., OF CITY OF BAYONNE et al.
• Court: New Jersey Supreme Court

70 A. 134

76 N.J.L. 573

MORRIS & CUMMINGS DREDGING CO.

v. MAYOR, ETC., OF CITY OF BAYONNE et al.

Court of Errors and Appeals of New Jersey.

June 15, 1908.

(Syllabus by the Court.)

Error to Supreme Court.

Action by the Morris & Cummings Dredging Company against the mayor and council of the city of Bayonne and others. Judgment (67 Atl. 20) for defendants, and plaintiff brings error. Dismissed.

Elmer W. Demarest, for plaintiff in error.

McDermitt & Euright, for defendants in error.

PER CURIAM. The record returned with the writ of error in this case shows that the proceedings below consisted of a rule to show cause why a writ of mandamus should not issue requiring the city of Bayonne and the members of its common council, defendants in error, to apportion certain arrears of taxes on lands of the prosecutors, a stipulation of facts in lieu of depositions pursuant to such rule, a further rule of the Supreme Court making the rule to show cause absolute and directing that a peremptory writ of mandamus issue, and the writ itself.

It was decided by this court as long ago as 1860 that error would not lie in such a case. This rule was reaffirmed in American Trans. Co. v. N. Y. Susq. & W. R. R. Co., 59 N. J. Law, 156, 35 Atl. 1118, and in Paterson, City of, v. Shields, 59 N. J. Law, 426, 36 Atl. 891. The proceedings are reviewable in error if on an issue of fact or law final judgment is given. P. L. 1903, p. 381, § 4. The practice in such case is indicated and its history given in the opinion of the late Mr. Justice Dixon in Kenney v. Hudspeth, 59 N. J. Law, at page 527 et seq., 37 Atl., at page 67. And by the mandamus act, where the constitutionality of a statute is the main issue involved, error will lie even if there is no judgment. P. L. 1903, p. 381, § 6; Neptune Township v. Mannion, 73 N. J. Law, 816, 65 Atl. 440. In the present case, however, as in the case of Paterson v. Shields, supra, no such constitutional question is raised, nor is there any issue framed upon pleadings.

The writ of error will therefore be dismissed.