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City of Newark v. Fischer

Decided: January 16, 1950.

CITY OF NEWARK, PETITIONER-RESPONDENT,
v.
CHARLES FISCHER, OR NORBET CORPORATION, RESPONDENT-APPELLANT



On appeal from Superior Court, Appellate Division, whose opinion is reported in 4 N.J. Super. 499.

For reversal -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant and Burling. For affirmance -- Justice Wachenfeld. The opinion of the court was delivered by Burling, J.

Burling

This is an appeal from a judgment of the Superior Court, Appellate Division, affirming a judgment of the Division of Tax Appeals, Department of the Treasury, which reversed the Essex County Board of Taxation and restored an assessment of $77,200 on certain land and improvements thereon located in the City of Newark. Certification was granted by this court pursuant to a petition therefor by the appellants.

The sole question involved relates to the timeliness of an appeal made by the City of Newark to the Division of Tax Appeals from the judgment of the Essex County Board of Taxation.

The question arises in the following manner:

The taxing district of the City of Newark, as of October 1, 1946, assessed certain improved real property known as 2-20 Orange Street, Block 11, Lot 1, in the name of appellants,

in the amount of $77,200 for the tax year 1947. Legal title was in The Trustees for the Support of Public Schools of the State of New Jersey and the appellants were in possession under an executory contract for the purchase thereof. The assessment was made pursuant to R.S. 54:4-1, as amended by Chapter 242, Laws of 1946, effective May 1, 1946, which provides "* * * An executory contract for the sale of land, under which the vendee is entitled to or does take possession thereof shall be deemed, for the purpose of this act, a mortgage of said land for the unpaid balance of purchase price * * *."

On July 18, 1947, the appellants filed a petition of appeal with the Essex County Board of Taxation alleging that the assessment was improper and requesting that the assessment be cancelled. The petition referred to the assessment as being $79,200, whereas the assessment was $77,200.

On September 10, 1947, a hearing was held on said petition at which time the City of Newark pointed out to the County Board that the validity of an assessment against the same property for the year 1946 had been determined favorably to the City of Newark by the New Jersey Supreme Court on March 4, 1947, in litigation between the same parties. Norbet Corporation v. Newark, 135 N.J.L. 314 (Sup. Ct. 1947). That decision was later affirmed by the Court of Errors and Appeals on May 13, 1948. 137 N.J.L. 301 (E. & A. 1948). The County Board, nevertheless, filed a certificate of judgment granting a remittance of $79,200. The certificate of judgment was filed on October 30, 1947.

On November 14, 1947, the County Board, without further hearing or notice to the parties, filed a "corrected certificate," the context of which was exactly the same as the original certificate, filed on October 30, 1947, with the exception that the amount remitted was stated to be $77,200, this latter sum being the actual amount of the assessment.

On December 8, 1947, the City of Newark filed a petition of appeal with the Division of Tax Appeals appealing from the County Board's judgment. On October 15, 1948, a motion was made to ...


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