Price, Schettino and Hall. The opinion of the court was delivered by Schettino, J.A.D.
[54 NJSuper Page 245] By our unreported per curiam opinion filed February 14, 1958 we retained this appeal and, for the second time, remanded the cause to the Division of Tax Appeals for a hearing in conformity with that opinion and for further consideration and determination by the Division. In order to focus the issues we repeat the opinion.
"The Borough of Hasbrouck Heights appeals from judgments of the Division of Tax Appeals with respect to the assessments for 1954 on garden apartments at 441 Boulevard and 463 Boulevard in that municipality. The borough had assessed these two apartment houses, exclusive of the land, at $55,000 and $70,000 respectively; the county board of taxation had reduced the assessments to $52,000 and $57,000 respectively. The borough then appealed, and the Division affirmed. When the case first came before us, we, citing Fifth Street Pier Corporation v. City of Hoboken , 22 N.J. 326 (1956) and other cases, remanded it to the Division.
"The taxpayers, Grand View Gardens, Inc. and Grand View Homes, Inc., in their petitions of appeal to the county board, had charged the borough, inter alia , with discrimination, stating that their properties were being 'assessed at (a) higher rate than other residential property in the Borough * * *.' This constitutes the principal issue in the case. At the hearing in the Division, the borough called as its witness William J. Schwenn, a real estate appraiser, who valued these apartment houses, exclusive of the land, at $148,000 and $171,000 respectively (we are not concerned with the assessments on the land). The taxpayers then called a member of the borough's board of assessors, who testified that the borough deliberately assessed all properties in the municipality at 30 to 33-1/3% of the true value. If one multiplies these percentages with Schwenn's valuations of $148,000 and $171,000 respectively, one finds that on the basis of these figures, the assessments should not have exceeded $49,333 and $57,000 respectively. The Division accordingly rejected the borough's demand for an increase of the assessments of $52,000 and $57,000 imposed by the county board. In effect, it found that an increase would have been discriminatory as against the taxpayers.
"The borough now contends, inter alia , that Schwenn's figures of $148,000 and $171,000, above mentioned, were intended to represent only 60% of true value. It is clear that in the present proceedings this point was not brought to the attention of the Division in any way. However,
Schwenn did testify that after taking into account certain offsetting figures, the above-stated valuations (relating, it will be recalled, to the year 1954) came to the same amount as the valuations placed by him on the properties in proceedings before the Division in connection with assessments for 1949. See Grand View Gardens, Inc. v. Borough of Hasbrouck Heights , 14 N.J. Super. 167, 169, 171 (App. Div. 1951), dealing with 463 Boulevard (the Appellate Division opinion as to 441 Boulevard is unreported). Indeed, in the current proceedings he employed the very appraisal (with certain amendments inserted in pen) which he had had typed up for use in the previous cases. In these previous cases he had testified that his valuations were 'approximately 60 per cent * * * of today's or October 1948 valuations, or 100 per cent [of the] valuation of 1941,' and that he had appraised the properties on that basis because this was, so he stated, the method of appraisal employed by the Bergen County Board of Taxation. He also testified in those proceedings that the purchase price of the properties, the land and the improvements (sold in May 1949), was $500,000, as established not only by the stamps on the deed, but also by a statement of the owner made in his (Schwenn's) presence. 60% of $500,000, namely $300,000, is easier to reconcile with Schwenn's appraisal of $336,000 (including the value of the land), than is the figure $500,000. Respondents have come forward with no satisfactory explanation as to this testimony of Schwenn in these earlier cases, which, if true, demonstrates error in the present cause, so plain that we should notice it, even though it was not brought to the attention of the Division. R.R. 1:5-3(c) (the spirit of the rule compels its extension to appeals from administrative agencies).
"Accordingly we think -- notwithstanding the unfortunateness of having to remand the cases to the Division a second time -- that they should be sent back for a further hearing. If after such a hearing, it appears that Schwenn's valuations approximate only 60% of true value, then unless the taxpayers adduce further proofs on the matter, there is
nothing in the case to indicate discrimination. If that issue is eliminated, the Division must then determine the question of true value; and the taxpayers may desire to adduce proof on the matter. In that connection, some comment should be made on the taxpayers' persistent attempt to rely on the findings of the county board, notwithstanding Grand View Gardens, Inc. v. Borough of Hasbrouck Heights , 14 N.J. Super. 167, 171 (App. Div. 1951). As held there, these findings have only a presumptive effect, and on the introduction of substantial evidence in opposition to them, they cease to have any effect in the case.
"There is one other question argued before us which should be decided now, since it will doubtless be brought up on the remand. The borough contends that the Appellate Division's and the State Division's judgments as to the 1949 assessments are res judicata and hence determinative of the present controversy over the 1954 assessments. An appeal as to an assessment for one year and a subsequent appeal as to an assessment for another year, each present a separate cause of action. Hence in the absence of a statute to the contrary, a judgment determinative of the first assessment is not binding in the subsequent litigation as to the second assessment, except under the doctrine of collateral estoppel -- that is, only as to issues actually litigated and determined in the first case. In re Mutual Benefit Life Ins. Co. , 35 N.J. Super. 113, 116 (App. Div. 1955); Atlantic City Transp. Co. v. Director, Division of Taxation , 12 N.J. 130, 144 (1953); Aetna Life Insurance Co. v. City of Newark , 10 N.J. 99, 102 (1952); Hancock, Comptroller v. Singer Mfg. Co. , 62 N.J.L. 289, 339 (E. & A. 1898); New Jersey Junction R. Co. v. Jersey City , 70 N.J.L. 104 (Sup. Ct. 1903); Restatement, Judgments § 68, also p. 299; cf. Continental Purchasing Co. v. City of Newark , 18 N.J. Misc. 204 (Bd. Tax App. 1940); Central R.R. of New Jersey v. Martin , 19 N.J. Misc. 427, 441, 442 (Bd. Tax App. 1941); but cf. City of East Orange v. Church of Our Lady of the Most Blessed Sacrament , 25 N.J. Misc. 58, 61 (Div. Tax App. 1946).
"The issue of discrimination, now raised, was, so far as we have been informed, neither litigated nor determined in the proceedings with respect to the year 1949. That being so, the judgments entered ...