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Ruhle v. Caffrey

Decided: August 14, 1934.

HARRY J. RUHLE ET AL., PROSECUTORS,
v.
EDWIN C. CAFFREY, JUDGE OF THE BERGEN COUNTY CIRCUIT COURT, DEFENDANT



On certiorari.

For the prosecutors, Charles Fishberg.

For the defendant, Abram A. Lebson.

Before Justices Trenchard, Heher and Perskie.

Heher

The opinion of the court was delivered by

HEHER, J. The writs of certiorari allowed herein bring up orders entered in the Bergen County Circuit Court dismissing the several appeals of seven landowners from individual assessments, made by the mayor and council of the borough of Tenafly and the tax collector thereof, against their respective tracts of land, for benefits assertedly conferred by reason of the improvement of public highways laid out in that municipality. After the making of the return, an order of consolidation was entered. The returns are substantially alike, and the questions raised are common to all, with one exception to be hereinafter noted.

The court below concluded that the appeals should be dismissed, for the reasons that (1) the several notices of appeal were not signed by the appellants, and (2) service thereof upon the borough collector was irregular and ineffective, in that it consisted, in each case, of the delivery of a copy thereof to his wife.

The first ground is clearly untenable. Section 42 of article 20 of the act concerning municipalities (Pamph. L. 1917, pp. 319, 392), as amended by chapter 347 of the laws of 1933 (Pamph. L. 1933, p. 904), provides for the taking of the statutory appeal by the service and filing of a "written notice" thereof, without more except that it "shall state the address of the appellant where notice of further proceedings may be served upon him." This appellate proceeding is wholly statutory, and it is fundamental that a substantial compliance with the provisions of the statute is a prerequisite to jurisdiction in the appellate court. Compare Proprietors of Morris Aqueduct ads. Jones, 36 N.J.L. 206; affirmed, sub nom. Jones v. Morristown Aqueduct Co., 37 Id. 556.

The law, however, looks upon appeals with a favorable eye, and statutes prescribing the procedure will be liberally construed. There is no express requirement in the statute that the appellant shall append his signature to the notice of appeal, and such a legislative purpose will not be implied. In the absence of provision to the contrary, the notice of

appeal may be given by the appellant, or his authorized agent or attorney. Here each notice was signed in the name of the appellant by his attorney, who is a duly licensed attorney at law of this state. His authority in the premises will be presumed. Kaufman v. Jurczak, 102 N.J. Eq. 66.

The point made by respondent that the notice of appeal "left at the house of the tax collector" was not the "original notice," as distinguished from a signed manifold, is frivolous. There was a substantial compliance with the statutory requirement in this respect, and this, as we have pointed out, satisfies the statute.

But there was a fatal failure to comply with the directions of the statute as to service of the notice. Concededly, personal service of the notice was not made upon the tax collector. The affidavit of service sets forth that the notice was served upon the tax collector "by serving a copy of the [attached] notice of appeal upon Mary T. Delehanty, who was in charge of the tax collector's office * * *." There was personal service of the notice upon the borough clerk, except in the case of appellant Bertels. In the latter case service was made by delivering a duplicate to a subordinate in charge of the clerk's office. It is not suggested that personal service, upon these ...


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