Boyd Realty Co. v. Mayor of Leonia

159 A. 90, 10 N.J. Misc. 332, 1932 N.J. Sup. Ct. LEXIS 248

• Court: Supreme Court of New Jersey
• Decided: March 2, 1932
• Status: Published

Opinion

Pee Cueiam.

Boyd Eealty Company, Incorporated, has a rule to show cause why a writ of certiorari should not issue to review “the resolution or certificate fixing and determining the costs of the improvement constructed under and by virtue of an ordinance entitled: ‘An ordinance to provide for the laying of sanitary sewers and storm sewers * * * on Broad avenue, in the borough of Leonia/ &c.”

It is stipulated that no attack is sought to be made upon the validity of the ordinance or concerning procedure for the adoption of the report of the commissioners of assessment. The controversy is as to the fairness of the assessment.

The ordinance was adopted October 28th, 1929, and the work was completed within a year thereafter. The report of the commissioners of assessment was confirmed on December 29th, 1930. So far as appears, the work was prosecuted without objection, and the first complaint was made after the assessment was imposed.

The record is quite large, and the matter has been fully argued. However, as above stated, the question presented is as to the fairness of the assessment against the proponent of this rule.

It has been repeatedly held in this court that where an attack is made upon an assessment for unfairness, the dissatisfied owner must use the remedy provided in the Home Buie act o£ taking an appeal to the Circuit Court, before resorting to certiorari. Graham, v. Ocean City, 98 N. J. L. 426; Maywood Land Co. v. Maywood, 147 Atl. Rep. 743.

Upon the whole case, we are of opinion that the discretion of the court in allowing a writ of certiorari should not be exercised in this case.

The rule to show cause is discharged, with costs.