Goldmann, Sullivan and Labrecque. The opinion of the court was delivered by Labrecque, J.A.D.
Plaintiffs appeal from a judgment of the Law Division denying them the return of monies paid on account of assessments for local improvements which had been cancelled, pending a reassessment.
On June 2, 1954 the governing body of the Town of West New York adopted an ordinance, pursuant to chapter 261 of the Laws of 1949, N.J.S.A. 40:56-1.1 et seq., providing for the acquisition of certain lands as a local improvement for public parking purposes, and the issuance of bonds to finance the cost thereof. Thereafter, between June 21, 1954
and June 26, 1956, seven additional ordinances were passed, providing for the acquisition of additional lands and appropriating additional monies for the project. The ordinances called for establishment of two public parking areas, designated as the Van Buren and the Madison Parking Lots. They have been completed and are in operation.
Thereafter, a board of special assessors was appointed to consider the amount of the assessments to be levied against properties benefited by the improvement. The assessors filed their report on November 27, 1957 and it was confirmed on December 18, 1957.
Sometime in January 1958 a group of affected property owners filed a complaint in lieu of prerogative writs in the Law Division attacking, on various grounds, the ordinances and the proceedings of the board of assessors. The action was concluded by a consent judgment, dated May 23, 1958, setting aside the assessments, and providing for return of all monies paid thereon without prejudice to the validity of the improvement and bond ordinances described in the complaint.
In October 1958 the board of special assessors again undertook the work of levying new assessments. The resultant product was confirmed on July 29, 1959 at a meeting of the municipal governing body, after due notice and advertisement. On August 28, 1959 a second proceeding in lieu of prerogative writs was instituted by a group of property owners, seeking to invalidate the new assessments. Another action in the nature of an appeal under N.J.S.A. 40:56-54 was instituted by another group. The two proceedings were later consolidated. They challenged both the validity of the ordinances mentioned and the validity and amount of the assessments.
The action came on for trial in the Law Division after denial of defendant municipality's motion for dismissal. Following the trial, and on October 23, 1961, a judgment was entered setting the assessments aside. There was no opinion, and no findings were made (we are told there was no objection by defendant), but a provision in the order for judgment which had called for a refund of all monies paid upon the vacated assessments was deleted by the trial judge. On November
1, 1961 plaintiffs appealed from that portion of the interlocutory order denying defendant's motion to dismiss which held certain ordinances under attack by plaintiffs to be valid. Kastens v. Town of West New York, A-126-61. On January 7, 1963 there was an affirmance.
While the appeal was pending before us, plaintiffs filed the present action to compel the return of the monies paid by them on account of the assessments which had been set aside. In denying the refund the court determined that R.S. 40:56-34 applied; that the town was not precluded from making a reassessment, and that it had been justified in awaiting the result of plaintiffs' appeal before undertaking the reassessment. It further directed that the new assessment be completed on or before October 1, 1963. The latter direction was subsequently carried out. The present appeal is from the judgment thus entered.
The principal question presented by the present appeal is whether, upon the setting aside of an assessment for local improvements in a proceeding in lieu of prerogative writs or otherwise, a property owner who has paid the assessment becomes entitled to a return of monies paid on account thereof. A subsidiary question involves the effect of delay in making the new ...