On appeal from a judgment of the Supreme Court.
For the appellant, Joseph L. Lippman, Thomas S. Doughty and Milton B. Conford.
For the respondents, Thomas L. Zimmerman, Jr.
The opinion of the court was delivered by
DONGES, J. This is an appeal from a judgment of the Supreme Court dismissing a writ of certiorari allowed to review a sale of property for unpaid taxes for the years 1938 and 1939. The sale took place October 1st, 1940.
The property was occupied by the Ridgewood Lodge of Elks and its owner, Ridgewood Elks Holding Corporation, the prosecutor-appellant herein, contended that it came within one of the exemption statutes. Therefore an appeal was taken on the 1937 assessment to the County Board of Taxation which held that as to the building and five acres of land there should be an exemption, and that as to the remaining nine acres of land there should be no exemption. The village appealed to the State Board of Tax Appeals and that body determined that no part of the property was entitled to exemption. That determination has not been challenged directly and it must be considered as settled that the property does not come within the statute and is not entitled to exemption.
The State Board decision was not handed down until March 21st, 1939, and in the meantime two assessment dates had gone by. The local assessor assessed 1938 and 1939 taxes in compliance with the judgment of the County Board, that is, exempt as to the building and five acres of land and taxable as to the other nine acres. The appellant paid the taxes levied. Shortly after the State Board decision on the 1937 assessment, the assessor changed his tax duplicates to indicate an assessment upon the entire property for the years 1938 and 1939. The appellant claims it had no notice of this until August, 1940, and shortly thereafter, on October 1st, the sale was held. It did, however, have knowledge of the decision of the State Board with respect to the prior year's assessment.
A writ of certiorari was allowed to review the sale only and the Supreme Court dismissed the writ.
Although the direct attack involved herein is only upon the sale and the assessment itself is not brought up by the writ, the invalidity claimed in the sale is that it was not based upon a proper assessment, the argument being that the action of the assessor in changing his assessment records when he did was without warrant and ineffectual to bring about a proper assessment. A judgment for the appellant in this cause would merely result in setting aside the sale, but it would necessarily have to be based upon a finding that the assessment on the records for the years in question was invalid; and this in a proceeding where the assessment itself is not brought up for direct review.
In this situation, we think R.S. 54:4-58 applies. That section reads:
"No tax, assessment or water rate imposed or levied in this state shall be set aside or reversed in any action, suit or proceeding for any irregularity or defect in form, or illegality in assessing, laying or levying any such tax, assessment or water rate, or in the proceeding for its collection if the person against whom or the property upon which it is assessed or laid is, in fact, liable to taxation, assessment or imposition of ...