For the prosecutrix, John D. Craven.
For the respondents, James A. Hamill (Frank P. McCarthy, of counsel).
Before Justices Parker, Bodine and Perskie.
The opinion of the court was delivered by
PARKER, J. The determination of this case seems to rest fundamentally on the question whether there was error at the hearing before the State Board of Tax Appeals in excluding the testimony of Mr. John D. Craven, the counsel for appellant, bearing on the valuation for taxation of a house belonging to the prosecutrix in Jersey City. The house in question is one of a row of five brick houses built as one block of dwellings, each twenty feet in frontage on Kensington avenue. They are numbered respectively, 48, 50, 52, 54 and 56 Kensington avenue. The house of prosecutrix is No. 50. It was valued for taxation for 1937 at $6,400 for the land and $5,000 for the building. Prosecutrix appealed, claiming that the valuation was excessive. The County Board affirmed the assessment, and there was a further appeal to the State Board, which was heard before one of the commissioners of that board. At the hearing Mr. Craven was sworn as a witness (without objection) and testified that the house "is one of a row of five houses all built about the same time, about forty years ago. There are five houses built on four lots. The houses are all absolutely comparable; they have the same frontage of twenty foot and a depth of one hundred foot, and they are all of the same depth. The houses are all of the same construction, same width, twenty feet and about fifty feet
deep, and this property is absolutely comparable with the property that was sold for Florence H. Daly ." At this point counsel for Jersey City objected to any testimony of "comparable sales." Mr. Craven then called attention to chapter 229 of the laws of 1931, now R.S. 2:101-1, which provides, among other things, that "in any action or proceeding * * * on review of the assessment for taxes of any real property, any person offered as a witness in any such action or proceeding shall be competent to testify as to sales of comparable land, contiguous or adjacent to the land in question, or in the vicinity or locality thereof, from information of knowledge of such sales, obtained from the owner, seller, purchaser, lessee or occupant of such comparable land, or from information obtained from the broker or brokers who negotiated or who are familiar with or cognizant of such sales, which said testimony when so offered, shall be competent and admissible evidence in any such action or proceeding." Then there is a proviso which does not in any way bear on the present case.
The objection was put on the ground that Mr. Craven was not a real estate expert, and it was sustained by the commissioner. Mr. Craven offered to testify to a sale of property at 54 Kensington avenue, being one of these houses, and it appears elsewhere in the case that, if allowed to testify, he would have testified that No. 54 was not only comparable as a property, but had been sold on July 22d, 1937, at private sale for $5,500. We read in the brief for the defendant-respondent that "the question before this Honorable Court on the writ of certiorari was [is?] whether or not the State Board erred in excluding Mr. Craven, the attorney's testimony as to comparable sales."
It seems to be substantially conceded, even if sub silentio, that if Mr. Craven had been allowed to testify, he would have testified to a sale of No. 54 at a considerably lower price than the assessed value of No. 50, complained of.
The gravamen of the argument for the defendant-respondent is that the act in question is in derogation of the common law, and that because of what was said by the Court of Errors
and Appeals in Essex County Park Commission v. Brokaw, 107 N.J.L. 110, decided on May 19th, 1930, nearly a year before chapter 229 of the laws of 1931 was enacted, the latter statute was enacted solely with the intention of permitting real estate experts to testify as to the sales of comparable property in which the expert in question was not concerned, but which he knew of from information or ...