State v. Mayor of Bayonne

• Decision Date: 17 June 1889
• Citation: 51 N.J.L. 428,17 A. 971
• Court: New Jersey Supreme Court
• Parties: STATE (CENTRAL B. CO. OF NEW JERSEY, Prosecutor) v. MAYOR, ETC., OF BAYONNE.

17 A. 971

51 N.J.L. 428

STATE (CENTRAL B. CO. OF NEW JERSEY, Prosecutor)

v. MAYOR, ETC., OF BAYONNE.

Supreme Court of New Jersey.

June 17, 1889.

(Syllabus by the Court.)

Certiorari.

Argued February term, 1889, before SCUD-DER, REED, and DIXON, JJ.

E. A. S. Man, for prosecutor. C. W. Fuller, for defendant.

DIXON, J. This certiorari brings up the proceedings taken by the city of Bayonne for the opening of East Twenty-Second street, between Avenue E. and Avenue I. The first objection urged against these proceedings is that the common council did not grant to the commissioners of assessment further time for filing their report before the expiration of the 20 days specifically allowed by the city charter for filing the same. But the charter (P. L. 1872, p. 686, § 58) does not require the council to exercise its power to grant further time within the 20 days, and in the present case its exercise was certainly not unreasonably delayed. This objection cannot prevail. The next objections are against the notices given of the filing of the preliminary map and report of the commissioners. These notices clearly failed to comply either with the charter (section 58, ubi supra) or with the general law (Revision, p. 711.) They did not contain a general description of the land taken, or the land assessed, or of the streets or sections thereof, included in the assessment; they merely referred to the map on file as showing each lot or parcel of land bounded by the improvement. It is true that, in response to these notices, the prosecutor appeared, but that appearance was for the purpose of objecting to the proceedings on this ground, among others. Such an appearance is no waiver of the objection. State v. Jersey City, 26 N. J. Law, 444; State v. Perth Amboy, 29 N. J. Law, 259; State v. Commissioners, 41 N. J. Law, 83. For this reason the notice and all subsequent proceedings are illegal, and must be set aside. The next objection is that a special commissioner of assessment was appointed for this improvement in lieu of a regular commissioner who was interested therein, after the resolution referring the matter to the "commissioners of assessments" was passed. The appointment seems to have been made immediately after the passage of the resolution, at the same meeting of the council. This course of procedure was in accordance with the charter (section 58, ubi supra.) These two votes of the council should be regarded as parts of a single transaction, and were equivalent to a reference of the matter to the two disinterested regular commissioners and the special commissioner. The other objections are aimed at the amount of the awards and assessments made by the commissioners for and against the prosecutor. The assessments are not shown to be exorbitant, but we think the awards are proved to be inadequate.

Section 58 of the charter requires the commissioners to "appraise the value of the interest of each known owner of real estate to be taken, and the damage to be done to such owner by taking the same, considering in such appraisal the condition in which each owner's...