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Suburban Department Stores v. City of East Orange

Decided: November 20, 1957.


Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.


[47 NJSuper Page 474] Defendant City of East Orange ("city") appeals from a judgment of the Superior Court, Law Division, awarding plaintiff $670.24 as a refund of a portion of taxes paid for the year 1952 on property at 536 Main Street, East Orange. Defendant Essex County Board of Taxation ("tax board") also appeals the award, as well as that part of the judgment entered against it in favor of the city as third-party plaintiff, amending and reducing the assessment on the property as certified by it for the year

1952 and amending the assessment lists and records for that year accordingly.

Plaintiff was not the owner of the premises in question, but paid the taxes thereon. The East Orange Board of Assessors had assessed the property at $47,500 for the year 1952. On March 20, 1952 defendant tax board by order directed the local board of assessors to revise and correct its assessment lists as to certain parcels of real estate, including the premises in question. As a result the assessment was increased to $59,300. Plaintiff paid the tax bill of $3,368.24, based upon this increased assessment, without protest. Neither plaintiff nor the owner ever appealed the assessment. Nor was either a party plaintiff in the case of Baldwin Construction Co. v. Essex County Board of Taxation , 32 N.J. Super. 18 (Law Div. 1954), affirmed 16 N.J. 329 (1954), dealing with other East Orange assessments for 1952. Indeed, neither plaintiff nor the owner has ever contested the tax board's order of March 20, 1952 or the increased assessment, in any court or before any administrative tribunal.

Plaintiff's action to recover $670.24, representing the increase in 1952 taxes brought about by the increased assessment, is predicated upon the result in the Baldwin case. It claims that the court in Baldwin set aside the tax board's order as illegal and void, the effect being to restore all East Orange assessments to the figures originally fixed by the local board of assessors.

Leave having been granted, the city filed a third-party complaint against the tax board in which it asked that if the court should hold that plaintiff was entitled to a judgment against the city, then the tax board be required to revise its 1952 assessment lists and records so as to restore the assessment on plaintiff's property to the original figure.

We deem it unnecessary to set out all the separate defenses raised to the complaint and third-party complaint. Among them were the defenses that plaintiff's payment of the 1952 taxes was voluntary; that it had not contested the tax board order of March 20, 1952 in any court or before any statutory administrative tribunal; that the Baldwin judgment

affected only the assessments of the parties plaintiff therein, and plaintiff was not a party; estoppel by reason of failure to pursue statutory procedures and to commence an appropriate action promptly; waiver because of failure to contest the assessment in accordance with statute; laches; and bar by reason of failure to seek relief under R.R. 4:88-15(a).

At pretrial the parties agreed that the action be disposed of on the basis of the stipulations contained in the pretrial order and the exhibits introduced at the conference. The trial court held that the tax board order of March 20, 1952, which resulted in the increased assessment on the property occupied by plaintiff, was rendered null and void by the Baldwin case, and hence it would be unjust for the city to retain the tax representing such increase, paid by plaintiff. It thereupon entered the judgment referred to at the head of this opinion.

There is no need to detail the history of the increases in 1952 assessments in East Orange, for it is fully set out in the Baldwin case above, 16 N.J. , at page 332 et seq. Suffice to say that early in 1952 the Essex County Board of Taxation undertook a revision of property assessments throughout the county. Having only a limited budget and a limited period of time within which to effectuate the program, and with the intention of continuing the revision in the years following, the tax board on March 20, 1952 directed certain revisions of the tax lists, generally by increasing the assessments of business and commercial property in the most highly valued sections of municipalities throughout the county, including East Orange. Hundreds of individual parcels were subjected to increases in assessments as a result of this partial revision program, 62 being located in East Orange.

The owners of 31 of the properties in East Orange thereupon inaugurated a joint legal program seeking nullification of the tax board action with respect to their properties. They first filed regular appeals to the county tax board, and ...

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