State v. Mayor

• Decision Date: 12 November 1900
• Parties: STATE (STETLER, Prosecutor) v. MAYOR, ETC., OF BOROUGH OF EAST RUTHERFORD.
• Court: New Jersey Supreme Court

47 A. 489

65 N.J.L. 528

STATE (STETLER, Prosecutor)

v. MAYOR, ETC., OF BOROUGH OF EAST RUTHERFORD.

Supreme Court of New Jersey.

Nov. 12, 1900.

(Syllabus by the Court.)

Certiorari by the state, on the prosecution of Elizabeth Stetler, against the mayor and council of the borough of East Rutherford, to recover an assessment. Dismissed.

Argued June term, 1900, before VAN SYCKEL J.

Addison Ely, for prosecutor.

Shafer & Conkling, for defendant.

VAN SYCKEL, J. This certiorari is prosecuted to review an assessment made against George F. Stetler for flagging the sidewalk on Main street in front of lots now claimed to be owned by his wife, who is the sole prosecutrix. The proceedings certified were taken in pursuance of sections 33-36, Borough Act (1 Gen. St. p. 185). Section 35 authorizes the mayor and council to provide by ordinance (either general or special) for constructing, relaying, repairing, and keeping in repair the sidewalks on any and all streets within the borough, at the cost and expense of the owner or owners of the land in front of which the same may be constructed, provided that all such ordinances shall provide for allowing" such owner or owners at least 30 days within which to perform the work required thereby, and that written notice of the required work be served upon the owner. In case the owner fails to do the work within the time specified in the notice, sections 33 and 36 authorize the mayor and council to do it, and to assess the cost and expense upon the lands in front of which the flagging is laid. On the 20th of August, 1894, a general ordinance, passed in accordance with this legislation, went into effect, directing that all sidewalks should be flagged, specifying the manner in which it should be done, and providing for 35 days' notice to the landowner to do it before it could be laid at his cost and expense by the mayor and council. George F. Stetler, on his examination in chief, denies that he received the notice dated September 28, 1896, to lay the sidewalk within 35 days, but on cross-examination he says he received a 35-days notice. Glen, who served the notices for the borough, testifies that he did serve the notice of September 28, 1896, on George F. Stetler, and I accept his statement Stetler testifies that he transacted all his wife's business in relation to this property; that he collected the rents, paid the taxes, and managed it generally as if it were his own. This was not controverted by the prosecutrix, who...