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Arace v. Town of Irvington

Decided: June 20, 1962.


Glickenhaus, J.c.c. (temporarily assigned).


[75 NJSuper Page 260] This is an action in lieu of a prerogative writ, brought by plaintiff Leo Arace, tax assessor of the Town of Irvington, against the town and its governing body, which consists of five commissioners, whereby the plaintiff seeks in the first count to enjoin a certain investigation of assessment practices in said town, authorized and financed by virtue of certain resolutions adopted by the Irvington commissioners on June 19, 1961. The second count seeks to establish that the adoption of the resolution for the emergency appropriation of funds to finance the investigation was an ultra vires act and therefore null and void. In the third count plaintiff seeks to enjoin the investigating committee from questioning

him as to his method or methods of assessing property.

The case arose out of the following facts: There was a general revaluation of assessments in the Town of Irvington for the year 1960, and assessments were presumably equalized throughout the town. In 1961 a great many taxpayers complained that after their tax assessments were increased in 1960, to effect the equalization of assessments they were again increased in 1961. In view of the vast number of complaints from taxpayers, the governing body, on June 19, 1961 adopted the following resolution:

"WHEREAS, an emergency has arisen with respect to the unusual and excessive tax assessments widespread among the realty properties within this community, and

WHEREAS, this board has been inundated by numerous complaints of citizens respecting raises of tax assessments, and

WHEREAS, a cursory examination and investigation reveals extensive changes of assessments directly following a completed revaluation program, and

WHEREAS, such alteration of current revaluation figures should be the subject of an investigation and report,



1. Mayor William E. Lovell is hereby appointed as a committee to conduct an investigation of current assessment practices, and in connection therewith to hire necessary persons and to assist and retain qualified persons or forms [ sic ] to render opinion, and to report to this board from time to time, the progress of said investigation.

2. That the Director of Revenue and Finance, the Comptroller, the Assessor and such other person or persons having data pertaining to the realty assessments of the Town of Irvington be and are hereby directed to make available such records for investigation as are sufficient for this inquiry.

On the same date the governing body also adopted an emergency resolution appropriating the sum of $15,000 to cover the cost of said investigation.

On or about July 15, 1961 plaintiff was served with a "written notice" that an investigation would be conducted from July 24 through August 2, 1961, at the Irvington town hall. The notice directed him to be present and to have available for production and inspection the books of his office. On or about July 20, 1961 the plaintiff was served with a subpoena issued by defendant, Mayor William E. Lovell, commanding him to appear and to give testimony at said investigation.

Sometime prior to July 24, 1961 the plaintiff served the defendants with a notice of motion returnable July 24, 1961, by which he would seek an order restraining them from conducting said investigation.

On August 3, 1961 the court entered a preliminary injunction restraining the defendants from interrogating the plaintiff as to the amounts of the individual assessments made by him and as to the methods used by him in making the assessments, but permitting the plaintiff to be interrogated upon other matters. In arriving at this determination the court was of the opinion that the sole method provided by law for a review of the calculations made by the assessor in the valuation of real and personal property was by way of appeal to the county board of taxation. This order is still in effect.

The plaintiff asserts that he is the tax assessor of the Town of Irvington, having been appointed on June 30, 1960 by the Director of the Department of Revenue and Finance for a term of four years, by virtue of N.J.S.A. 40:46-6.2. He contends that the subject matter of the investigation is improper because it attempts to investigate current assessment practices, that is, the practice employed by him in valuing property. He further contends that he is bound to assess all property at true valuation; that if the alleged valuations are too high, landowners have the right to appeal to the county tax ...

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