State v. Inhabitants of North Bergen

The opinion of the court was delivered by Dalrimple, J. This writ brings up botli the ordinance and assessment for the improvement of a street in the township of North Bergen, in the county of Hudson. The ordinance was before this court in the case reported in 8 Vroom 402. The decision in that case set aside the whole assessment then in question. The ordinance remained unreversed. New commissioners have been appointed, and a second assessment made under the same ordinance. The prosecutor in this case questions as well the legality of the ordinance as the assessment. For the reasons given in the case referred to, and for others which might, perhaps, be suggested, it is too late to [695] call in question the legal sufficiency of the ordinance. The writ, as to it, must be considered as dismissed. Against the assessment it is objected that the report of the commissioners does not show that the amount assessed against the lands of the prosecutor is not in excess of the benefits conferred. An examination of the report will show that it expressly states that the lands assessed are severally and respectively benefited by said improvement, td the full amount levied thereon. This seems to be all that is required by the ruling in the case of Village of Passaic v. State, 8 Vroom 538. It is urged that the assessment is defective, because it does not appear that the commissioners took into consideration as well the damages as the benefits to prosecutor’s lands, by reason of the improvement. The general allegation in the report, that the lands have been benefited to the full amount assessed, is sufficient. We have not been referred to any case which holds that, in an assessment for benefits, it must affirmatively appear that the commissioners took into consideration each fact and circumstance necessary to enable them to come to a proper determination. Another objection to the proceedings is, that due notice of the meeting of the town committee to hear objections to the commissioners’ report and map was not given. The charter required ten days’ notice. The construction is, that notice given on the 25th day of August, of a meeting on the 4th of September then next, was not a notice of ten days. I think it was according to the recognized method of computation in such cases. State v. Jackson, 1 South. 323; Den v. Fen, 3 Halst. 303; Gillespie v. White, 16 Johns. 117; Vandenburgh v. Van Rensselaer, 6 Paige 147. The lands of prosecutor assessed are those contained in what, in the proceedings and evidence, is called plot “ J.” The evidence taken shows that plot “ J,” properly surveyed and located, embraces lands other than those belonging to the prosecutor. The assessment against plot “J” is in gross. It cannot, therefore, be known what proportion of the assessment is properly chargeable against the prosecutor. I do not [696] think the error in this assessment can be remedied by proceedings under the act of April 21st, 1876 {Laws, 1876, p. 291.) That act seems to relate to the apportionment of taxes, assessments, and water rents among subdivisions of a plot or parcel of land which has been properly assessed in the name of the right owner. If, however, that act, fairly construed, applies to the case before us, it does not matter because no proceedings have been taken to correct the case by making the proper apportionments. The evidence taken quite clearly shows that the'assessment against the prosecutor, in point of fact, is far in excess of the benefits derived from the improvement. For the two-reasons last above stated, the assessment against prosecutor must be set aside, with costs of printing case and making return to writ.