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Perry v. Martin

New Jersey Supreme Court


Decided: March 4, 1940.

EVA N. PERRY, AS EXECUTRIX OF THE LAST WILL AND TESTAMENT OF RALPH H. PERRY, DECEASED, PETITIONER-PROSECUTRIX,
v.
J. H. THAYER MARTIN, STATE TAX COMMISSIONER, RESPONDENT-DEFENDANT

On certiorari.

For the prosecutrix, Wall, Haight, Carey & Hartpence, Edward J. O'Mara and William H. Carey.

For the defendant, David T. Wilentz and William A. Moore.

Before Justices Bodine and Perskie.

Bodine

[124 NJL Page 214]

BODINE, J. This is a motion to strike depositions taken pursuant to a rule of this court in a certiorari proceeding to review a decree of the Prerogative Court in an inheritance tax matter. R.S. 2:81-8 provides for the taking of such depositions in any tax matter. Therefore, it would seem that if the depositions are material to the issues to be determined in this court that the motion must be denied. It is practically admitted that the facts proved by the depositions are material.

Not only does the Certiorari act provide for depositions in tax cases, but the practice has been consistently followed as shown by numberless decisions in this state. Royal Manufacturing Co. v. Rahway, 75 N.J.L. 416; Central Railroad of New Jersey v. State Tax Dept., 112 Id. 5; Atlantic City v. State Board of Tax Appeals, 123 Id. 464. Besides, the prosecutor in a tax case may have a constitutional right to a hearing in this court and an opportunity to present evidence by depositions. Trenton, &c., Traction Corp. v. Mercer County Tax Board, 92 Id. 398; Security Trust Co. v. . Lexington, 203 U.S. 323; Hill v. Martin, 296 Id. 393. The legislature might, however, relieve the court of the duty to review facts, providing some adequate and conclusive method was fixed for their determination. Elizabeth v. New Jersey Jockey Club, 63 Id. 515.

The moving party maintains that an inheritance tax is not such a tax as falls within R.S. 2:81-8. The act applies to any tax and provides that additional testimony may be taken by any party, the legislative meaning being clear.

The motion will be denied.

19400304


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