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City of Passaic v. Passaic Pioneer Properties Co.

Decided: April 25, 1960.

CITY OF PASSAIC, A MUNICIPAL CORPORATION, PETITIONER-APPELLANT,
v.
PASSAIC PIONEER PROPERTIES CO., RESPONDENT, AND DIVISION OF TAX APPEALS, DEPARTMENT OF THE TREASURY, RESPONDENT. CITY OF PASSAIC, A MUNICIPAL CORPORATION, PETITIONER-APPELLANT, V. GERA MILLS, GERA CORPORATION AND PASSAIC INDUSTRIAL CENTER, INC., RESPONDENTS-RESPONDENTS, AND DIVISION OF TAX APPEALS, DEPARTMENT OF THE TREASURY, RESPONDENT



Memorandum on motion.

Goldmann, Freund and Haneman. Goldmann, S.j.a.d.

Goldmann

The Attorney General moves for the issuance of a writ of execution against the City of Passaic for the collection of costs in the above appeals. The city resists the motion on two grounds: (1) because the Attorney General's participation in the appeals was based on the general public interest, and it is the policy of our law not to impose the costs of such participation upon any individual litigant, but rather on the public at large by legislative appropriation; and (2) N.J.S.A. 52:17 A -12 et seq. precludes the right of the Attorney General to receive any form of compensation, except such as provided by legislative appropriation.

In Passaic v. Passaic Pioneer Properties Co. the city appealed from judgments of the Division of Tax Appeals dismissing its appeals from judgments of the Passaic County Board of Taxation reducing the 1954 and 1957 assessments on respondent taxpayer's real property, and affirming those judgments. We affirmed. 55 N.J. Super. 94 (1959).

In Passaic v. Gera Mills the city appealed from Division judgments determining the assessment on the real property of Gera Mills and its successor owners for the years 1954, 1956 and 1957. Here, again, we affirmed. 55 N.J. Super. 73 (1959). Certification was denied in both cases. 30 N.J. 153 (1959).

Our mandates of affirmance issued in due course and awarded costs to the Division of Tax Appeals and against the City of Passaic. The Superior Court Clerk subsequently taxed costs of $120 in the Passaic Pioneer Properties Co. case, and $102 in the Gera Mills case. Copies of the taxed bills of costs were served upon the city. Thereafter the Attorney General, as attorney for the Division of Tax Appeals, on a number of occasions requested payment of the city. Eventually he was advised that the city intended to oppose the claims for costs.

R.R. 1:9-2, made applicable to this court by R.R. 2:9-2, provides that costs shall be taxed by the clerk "(1) In the manner ordered by the appellate court. (2) In the absence of such order, in favor of the prevailing party * * *." Pursuant to that rule we expressly ordered payment of costs in favor of the State as the prevailing party.

The particular items which may be included in a taxed bill of costs are set out in N.J.S. 22 A:2-2 through 5. There is no dispute as to the propriety or amount of any of the items which make up the present taxed bills of costs.

In support of its contention that costs may not as a matter of law be awarded in favor of the Division of Tax Appeals, since the Attorney General had participated in the appeals because they involved questions of general public interest, the city cites Hasbrouck Heights v. Division of Tax Appeals , 48 N.J. Super. 328 (App. Div. 1958); In re Katz , 40 N.J. Super. 103 (Ch. Div. 1956); and In re Linden , 57 N.J. Super. 233 (Cty. Ct. 1959). None of these cases is in point. Hasbrouck Heights concerned itself with the circumstances under which the Attorney General should participate as an attorney for a state administrative

agency in an appeal from its decision. Cf. N.J.S.A. 52:17 A -4(e). The Katz and Linden cases dealt with the question of the allowance of counsel fees in favor of the Attorney General -- a matter completely different from the allowance of statutory costs consisting primarily of out-of-pocket expenses for printer's fees.

The city cites N.J.S.A. 52:17 A -12 for the proposition that the Attorney General's compensation is limited to legislative appropriations made to the Department of ...


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