Kilkenny, Labrecque and Leonard. The opinion of the court was delivered by Labrecque, J.A.D.
In these consolidated appeals the Township of Berkeley (the taxing district) appeals from judgments of the Division of Tax Appeals (the Division) reducing the assessed valuations of some 20 parcels of real estate owned by petitioners.
The facts are uncomplicated and not seriously in dispute. Petitioners filed timely appeals to the Ocean County Board of Taxation seeking reductions in the assessment on each parcel. The matter was scheduled for hearing on September 8, 1966 at 1 P.M. at the Berkeley Township Municipal Building, Route 9, Bayville, pursuant to notice. On that day the attorney who was to try the case for petitioners, through inadvertence, failed to appear at the hour appointed. The omission was detected by one of his associates at 1:30 P.M. whereupon a call was placed to the tax assessor's office in Bayville advising that the attorney was on the way. When he arrived some 15 minutes later he was informed by the tax assessor that the county board had adjourned for the day at 1:30 P.M. after "dismissing" the appeals for lack of prosecution.
Petitioners thereupon prepared and filed a petition, supported by the attorney's affidavit as to the foregoing facts, praying that the appeals be relisted for hearing at the board's earliest convenience. By letter dated October 11, 1966 the board advised that it "reaffirmed" its decision to dismiss the appeals for lack of prosecution. Finally, on November 14, 1966 judgments were entered dismissing
the appeals as to each property. Each judgment bore the notation "Dismissed -- No Appearance."
The taxpayers thereupon filed timely appeals to the Division. We are not clear as to whether the Division initially declined to entertain them or merely suggested that an action in lieu of prerogative writs be filed to compel the county board to hear them. In any event, the taxpayers attempted to pursue the latter course but their complaint was dismissed on the ground that the action was out of time.
Thereafter the appeals were listed for hearing before a judge of the Division. At the hearing there was a motion to dismiss the appeals on the ground that the Division was without jurisdiction to hear them since they had been dismissed in the county board for lack of prosecution. N.J.S.A. 54:2-39. The motion was denied and at the hearing on the merits each petition was amended to set forth the true value of each parcel to be the value (somewhat higher) agreed upon by the parties in settlement of the 1967 assessments on the same parcels. Following the hearing judgments were entered reducing the assessments to coincide with such valuations. The taxing district thereupon appealed, challenging both the Division's jurisdiction to hear the appeals and the sufficiency of the proofs to justify the reductions granted.
The taxing district urges that since the judgments of the county board were based upon the petitioners' failure to prosecute the appeals, the Division of Tax Appeals was without jurisdiction to entertain the appeals from the county board's action. It relies upon N.J.S.A. 54:2-39 which provides:
Any appellant who is dissatisfied with the judgment of the county board of taxation upon his appeal may appeal from that judgment to the Division of Tax Appeals in the Department of the Treasury by filing a petition of appeal to the division, in manner and form to be by said division prescribed, on or before December 15 following the date fixed for final decisions by the county boards, and the division shall proceed summarily to hear and determine all such appeals and render its judgment thereon as soon as may be.
No appeal * * * shall lie to the Division of Tax Appeals in the Department of the Treasury where the appeal to the county board of taxation has been (a) withdrawn at the hearing, or previously thereto in writing by the appellant or his agent; (b) dismissed because of appellant's failure to prosecute the appeal at a hearing called by the county tax board; (c) settled by mutual consent of the taxpayer and assessor of the taxing district. This provision shall not preclude an appeal to the Division of Tax Appeals ...