Town of Kearny v. State Bd. of Taxes and Assessment
| Decision Date | 16 September 1927 |
| Docket Number | No. 276.,276. |
| Citation | 138 A. 569 |
| Parties | TOWN OF KEARNY v. STATE BOARD OF TAXES AND ASSESSMENT et al. |
| Court | New Jersey Supreme Court |
(Syllabus by the Court.)
Certiorari by the Town of Kearny to review a judgment of the State Board of Taxes and Assessment reducing the valuation for taxation of the plant of the Congoleum-Nairn Company. Judgment for the prosecutor (134 A. 620), and, from a refusal to fix the valuation (135 A. 61), the prosecutor appealed, and such refusal was sustained (137 A. 919). On application for an award of costs in the Supreme Court in favor of the prosecutor. Application denied.
Argued May term, 1926, before PARKER, BLACK, and CAMPBELL, JJ.
Hobart & Minard, of Newark, for prosecutor.
John Milton and John J. Mulvaney, both of Jersey City, for defendants.
On certiorari to a judgment of the state board, reducing the valuation for taxation of the plant of the Congoleum Nairn Company, the town of Kearny as prosecutor was successful to the extent of obtaining the judgment of this court that the state board proceeded illegally in reaching its judgment, and that such judgment be set aside. Kearny v. State Board (N. J. Sup.) 134 A. 620. This normally required that the case go back to the state board for a retrial conducted according to the principles laid down. The prosecutor, preferring the direct action of this court, applied to have us fix the valuation, which we declined to do (s. c, 135 A. 61), and on appeal our refusal was sustained [(N. J. Err. & App.) 137 A. 919j. Then the prosecutor applied for award of costs in the Supreme Court ad anterim as the successful litigant in that court.
It is plain that costs should not go as against the state board, because it is a state agency, not to mention the fact that it is the statutory tribunal whose judgment was reversed. Tenement House Board v. Schlechter, 83 N. J. Law, 88, 83 A. 783; Rayner v. Benjamin, 88 N. J. Law, 83, 86, 95 A. 767; Manufacturer's Land Co. v. Board, 98 N. J. Law, 638, 642, 121 A. 337.
As to the Congoleum-Nairn Company, the case is within the well-settled rule that, where a judgment is reversed in an appellate court, and a new trial awarded, where the reversal is on account of error in the trial court, and such reversal does not finally determine any issue between the parties, costs should not be awarded at law in the appellate court. L. V. R. R. Co. v. McFarland, 44 N. J. Law, 674; Lynch v. P. S. Ry. Co., 83 N. J. Law, 783, 85 A. 343; Reed v. P. S. Ry. Co....
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