For the prosecutor and prosecutrice, Milton T. Lasher.
For the respondents, William M. Seuffert.
Before Justices Parker, Bodine and Perskie.
The opinion of the court was delivered by PERSKIE, J. There are two writs of certiorari involved in this case. The purpose of each is to review (1) a proposed tax sale which was to have been held under and by virtue of sewer assessments levied on November 18th, 1931, by the borough of Englewood Cliffs; and (2) a resolution of the mayor and council of said borough under date of October 13th, 1938, which resolution rescinded a previous resolution dated July 8th, 1937, which in turn had abated the balance due on the assessments.
Marie L. Hamilton and Lucille Hamilton (hereafter referred to as the Hamiltons) are the prosecutrice of one writ; and the First National Bank of Fort Lee (hereafter referred to as the Bank) sued out the other; it being the holder of a mortgage on the premises of Marie L. Hamilton, which premises are allegedly subject to the aforementioned assessment.
While the record before us does contain a "Return to Writ" in both the Hamilton and Bank cases, the schedules referred to in those returns, consisting of minutes of meetings of the respondent municipality and depositions are appended to the return in the Bank case only. Counsel, with the approval of Mr. Justice Bodine (see Phi Zeta Fraternity v. City of New Brunswick, 123 N.J.L. 237; 8 A.2d 553), have stipulated that the cases be argued together, apparently intending that the full return with schedules annexed in the Bank case be our record for both cases. We so regard it.
From the various minutes of the meetings of the mayor and council of respondent municipality we learn that a sewerage system was constructed in the municipality at a cost of $322,856.97; that the Board of Assessors were requested to make an assessment upon the lands benefited by the improvement; that notice was given by the board of a hearing during which it considered the assessment; that the Board of Assessors filed its report certifying the assessment; that due notice was given by the mayor and council of respondent municipality of a meeting to be held on November 18th, 1931, when the report of the board was to be considered; and that on
November 18th, 1931, a resolution was passed adopting and confirming the assessment as made by the Board of Assessors.
At this point it should be noted that the Hamiltons are owners of adjoining properties in the borough of Englewood Cliffs. These properties are known as Lot 1C in Block 8 and Lot 1B in Block 8. Both of these lots are bounded on the west by a highway known as Hudson Terrace, lot 1C having a frontage of 111.28 feet on that highway and lot 1B having a frontage of 125.34 feet thereon. Lot 1C has an average depth of 383 feet and the building located thereon is approximately 225 feet from Hudson Terrace, while lot 1B has an average depth of 319 feet and the building located thereon is about 200 feet from Hudson Terrace. Hudson Terrace is within that part of the municipality wherein it constructed the sewerage system hereinbefore mentioned. By virtue of that fact, prosecutors' properties were assessed $853.46 and $736.80, respectively, for the benefits allegedly accruing by virtue of the new system. Each of the Hamiltons paid some portion of their assessment from time to time until the summer of 1936. Marie Hamilton paid $260.47 and Lucille Hamilton paid $372.40.
Turning once again to the minutes of the meeting of the borough, we learn further that on May 27th, 1937, the mayor appointed a committee to investigate the matter of sewer assessments on the Hamiltons' properties. This action was taken as a result of communications received from the Hamiltons who, notwithstanding the fact that they had made payments, apparently complained about the assessments. The matter was discussed by the council again on June 10th, 1937, and on July 8th, 1937, a resolution was passed abating the assessments levied upon the Hamiltons' properties. Fifteen months later, on October 13th, 1938, without giving any notice of their intention to do so, the mayor and council of respondent municipality passed another resolution rescinding the one passed by it on July 8th, 1937, and reinstating the assessment.
In the meantime, on May 9th, 1935, Marie L. Hamilton, the owner of lot 1C, block 8 and her ...