State v. City of Perth Amboy

• Decision Date: 01 November 1899
• Citation: 44 A. 971,63 N.J.L. 520
• Parties: STATE (MEREDITH et al., Prosecutors) v. CITY OF PERTH AMBOY.
• Court: New Jersey Supreme Court

44 A. 971

63 N.J.L. 520

STATE (MEREDITH et al., Prosecutors)

v. CITY OF PERTH AMBOY.

Supreme Court of New Jersey.

Nov. 1, 1899.

(Syllabus by the Court.)

Certiorari by the state, on the prosecution of William T. Meredith and others, against the city of Perth Amboy, to recover award of damages in favor of the prosecutors, and an assessment for benefits made against them. Award and assessment set aside.

Argued June term, 1899, before COLLINS and DIXON, JJ.

Ephraim E. Cutter and A. H. & Theo. Strong, for prosecutors.

James S. Wight, for defendant.

DIXON, J. This certiorari, allowed December 14, 1898, directs to be sent up for review an award of damages made in favor of the prosecutors, and an assessment for benefits made against them, by commissioners, for the laying out and opening of Railroad avenue, in the city of Perth Amboy, and the resolution of the city council passed March 25, 1898, to confirm the same. The return shows that such award and assessment were made in a single report filed with the city clerk, March 10, 1898, but does not show the tenor or substance of the report. Evidence taken in the cause discloses the fact that the report has been lost, but this also fails to indicate its purport. It being incumbent on the city, in responding to the writ, to establish the fact that a legal award and assessment were made, its failure to do so must lead to a reversal of its proceedings, unless the prosecutors are precluded from their normal remedy. No bar for the protection of the award is suggested, except the fact that, before the writ was applied for, awards made to other landowners were paid by the city. It appears that these awards were paid April 22, 1898, within a month after the resolution to confirm them, and that these prosecutors had no notice that such payments were likely to be made until, on the same date, a check for their award was tendered. Their prompt refusal to accept that check gave the city immediate notice of their position, and no degree of diligence in applying for a certiorari would have prevented the payment of the other awards. These circumstances, we think, refute the charge of laches and estoppel.

The assessment is defended on the ground that the certiorari was not applied for within six months after confirmation of the assessment, as the statute requires. But this statutory limitation upon the allowance of a prerogative writ cannot be enforced for the protection of an assessment which the legislature could not...