Wolfson v. Commissioners of Assessments

153 A. 106, 9 N.J. Misc. 161, 1931 N.J. Sup. Ct. LEXIS 467

• Court: Supreme Court of New Jersey
• Decided: January 21, 1931
• Status: Published

Opinion

Per Curiam.

This is an application for a mandamus to require the commissioners of assessment of Perth Amboy to award to Mrs. Wolfson the damages sustained by her by reason of a change of grade in Payette street, on which her property fronts.

Relator concedes that she is not entitled to damages unless by virtue of some statute. In 1858 the Road act changed the common law and allowed damages, but this was expressly repealed in 1918. See Sommer v. State Highway Commission, 148 Atl. Rep. 171. Consequently, relator falls back on section 65 of the charter of the city of Perth Amboy, which dates from 1870, and provides that a grade shall not be altered except by application of three-fourths of the owners, nor without paying to the owners of any buildings where damages are sustained by the alteration of grade, the amount of the damage determined by the commissioners of assessment, and that these expenses shall be assessed upon the lands of those applying for the change of grade. The answer made to this is that it was repealed by the Home Enle act; and that is a question to be here determined. As is well known, the Home Eule act established an alternative method of doing this sort of work. One method is, by regarding it as a local improvement • and assessing the benefits upon the property benefited; the other way is to consider it a general improvement and have the cost borne by the municipality at large. In the present case the improvement was a general improvement and the argument for the respondent is, that whatever might- be said about it, if it were a local improvement, the fact that it is a general improvement under the Home Eule act takes it entirely outside the provisions of the charter, which are restricted to cases where the cost is assessed upon the property, so that even if section 65 is still in force and unrepealed as to assessable damages, it is not in force with respect to general improvement.

It is mmecessary to adopt this view of the matter, which might result in the conclusion that Perth Amboy can evade liability for damages by making a general improvement when it would be liable for damages if the improvement were local. It cannot be doubtful that the Home Eule act establishes an entirely new scheme of operation, and is intended as a general new regulation relating to all municipalities; and that in consequence the provisions of the charter entitling the owner to damages have been repealed by the Home Eule act whether the improvement be a general or a local one. Harrington’s Sons Co. v. Jersey City, 78 N. J. L. 610; Board of Education v. Tait, 81 N. J. Eq. 161.

The rule to show cause will be discharged.