For the prosecutor, Milton M. Unger.
For the defendant, Raymond Schroeder and Joseph A. Ward.
Before Justices Case, Donges and Colie.
The opinion of the court was delivered by
DONGES, J. This writ of certiorari brings up for review an assessment against lands of the prosecutor for a sewer improvement "confirmed or attempted to be confirmed on or about August 6th, 1940, in the sum of $770."
The assessment was made under chapter 35 of the laws of 1895, 3 Comp. Stat., p. 3581, since repealed but applicable to the present case. The sewer was constructed prior to February 11th, 1910, at which time prosecutor owned, and still owns, premises known as 54-82 Lockwood Street, in Newark,
along which street the sewer was constructed in front of prosecutor's lands. On February 11th, 1910, a report of assessment commissioners was confirmed by the Circuit Court, imposing assessments for benefits from the sewer construction. That report imposed an assessment for direct benefits on prosecutor's property in the sum of $345, which was paid on April 14th, 1910. It also imposed assessments for prospective benefits amongst which was one against the prosecutor's property in the sum of $770. This was done under the above-mentioned statute, the pertinent paragraph of which read as follows:
"Assessments for sewers; direct and prospective benefits; collection. -- Sec. 2. That the assessment upon all lands and real estate which at the time of making such assessment front or abut on, or are situate in the vicinity of the line of such main, trunk, or intercepting sewer or drain, or any other sewer or drain already constructed, and connected directly or indirectly therewith, whereby a direct tapping or drainage benefit is or may be secured, shall be collectible at once, and that where such benefit is prospective only, depending upon the construction of any other and connecting sewer or drain not yet built, such assessment shall be collectible and bear interest only from the time when the assessment to be made for benefits conferred upon such lands and real estate, by the construction of such other sewer or drain along the line of which such lands and real estate front or abut, or are in the vicinity of, shall be confirmed and collectible."
The validity of this method of assessing prospective benefits has been upheld. Vreeland v. Bayonne, 60 N.J.L. 168.
No attempt was made to collect the assessment of $770 or to have it declared a lien, and prosecutor was unaware that it was considered to be a lien until it ordered a tax search in August, 1940, which search recited as a lien "East Branch Relief Sewer, conf. 8/6/40, $770, interest and costs to be added." Just what the alleged confirmation of August 6th, 1940, was, does not appear.
It is undisputed that no additional connecting sewers have been constructed in the vicinity since the original construction and that the situation ...