Conford, Freund and Haneman. The opinion of the court was delivered by Conford, J.A.D.
[53 NJSuper Page 534] By judgment of the Superior Court, Law Division, dated December 20, 1957, the defendants, members of the Board of Assessors of the Township of Lakewood, were commanded to value and assess all real property in the township for purposes of taxation for the year 1959 and thereafter at the true or full and fair value thereof, as required by statute, N.J.S.A. 54:4-1, 54:4-23. On September 5, 1958 defendants made a motion for a stay of the judgment to relieve the defendants of the obligation
of complying with it for the tax year 1959. This appeal is from the denial of the motion. An application for certification of this action of the trial court was denied by the Supreme Court.
It should first be noted that defendants never appealed from the judgment of December 20, 1957. There is therefore a serious preliminary question as to whether the rule as to stay, R.R. 4:64, upon the basis of which the present application for stay was made, is properly invocable to justify a nullification of a part of the subject matter of the judgment; i.e. , the assessment of real property in Lakewood for the year 1959 at true value. Stays of judgments are ordinarily granted on the premise or assumption that the subject matter of the action which is adjudicated or secured by the judgment will be protected, not destroyed or impaired. The stay here requested is sought for the very purpose of impairing the subject matter of the judgment, pro tanto , and this even without an appeal from the judgment. But we pass this question to consider the appeal on the merits of the points urged by the defendants.
The plea is that enforcement of the judgment will visit "economical dislocation and hardship" on the municipality in several respects; that it is highly likely that there will be legislative action shortly which will obviate such difficulties; and that for these reasons the enforcement of the judgment for the tax year 1959 should be stayed.
We are informed that the defendant township contracted with J.M. Cleminshaw Co. under date of July 26, 1956 to conduct a revaluation of all real property in the municipality and that this work was completed in the early part of 1958. Defendants propose to base the 1959 assessments on the Cleminshaw valuations but desire to use a uniform lower ratio for this purpose than the statutory mandate of 100%. The plaintiffs in this cause are satisfied with defendants' said representations, and have, therefore, in their statement in lieu of brief, informed the court that they do not oppose the stay sought. This was the same position they took before the trial court, without, however,
withdrawing this action. So long as the action pends, however, and is not withdrawn by the plaintiffs, we are not at liberty to reverse the trial court determination except upon the basis of error demonstrated on the appeal. We find none.
The hardships assigned by defendants to justify a stay are: (1) the Cleminshaw valuations aggregate $70,000,000 at full true value, whereas county taxes for 1958 were paid on the basis of equalized true valuations produced by the state sales ratio tables at an aggregate of $57,000,000 of true value. It is therefore pointed out that Lakewood will probably have to pay an increase of $46,800 in county taxes for 1959 if the Cleminshaw figures are used in the 1959 assessments; (2) the cash value of veterans' exemptions will decline as the increased aggregate assessed valuations deflate the municipal tax rate; (3) the lowered tax rate will reduce the tax yield on personal property; (4) the statutory bonded indebtedness limit of the township will increase, making possible added indebtedness beyond the financial capacity of the township.
The first assignment of hardship is without any real merit. While the judgment states that assessments on the basis of the Cleminshaw valuations will constitute compliance therewith, the assessors have the right and duty to fix any assessed valuations which in their bona fide judgment represent full true value as of the assessing date. Theoretically, such figures should aggregate substantially the same gross amounts as the equalized aggregates arrived at by the county boards of taxation in the apportionment of county taxes, whether by use of the state sales ratio tables or otherwise. See Carteret v. Div., etc., Dep't of Taxation and Finance , 40 N.J. Super. 439 (App. Div. 1956), certification denied Borough of Sayreville v. Division of Tax Appeals , 22 N.J. 224 (1956); Township of North Bergen v. Division of Tax Appeals , 40 N.J. Super. 510 (App. Div. 1956), affirmed 24 N.J. 89 (1957).
It is to be presumed that apportionments of county taxes made by the county board of taxation represent a
fair and just distribution as between taxing districts. Remedy by statutory review is available to any dissatisfied municipality. ...