(Union Co. Common Pleas, Jan., 1922).
_Assessment for Repairing Street--Method Employed--Method Suggested_.
In re appeal from assessment for repairing Elizabeth Avenue from Front
street to Seventh street, Elizabeth.
Mr. Alfred S. Brown, Appellant, in person.
Mr. Joseph T. Hague, for City of Elizabeth.
PIERCE, J.: This is an appeal from an assessment for repaving with
granite blocks that portion of Elizabeth avenue, Elizabeth, extending
from a point about 150 feet east of Front street to Seventh street. The
error complained of is inequality as compared with other assessments.
Appellant is the owner of a triangular lot of land lying between
Elizabeth and First avenues, at their intersection at Liberty Square;
the lot is bounded northerly 350 feet on Elizabeth avenue, easterly 31
feet on Liberty Square, southerly about 350 feet on First avenue, and
westerly 133 feet on abutting property; the lot is vacant except for an
old house at the southwest corner fronting on First avenue.
The general method of assessment adopted by the Commissioners was as
follows: From the whole cost of the improvement, $220,330.56, was
deducted $23,127.29, paid by the Public Service Company for repaving its
trolley tracks, leaving $197,203.27, of which one-half was assumed by
the City and the other half assessed upon abutting property, being at
the rate of $8.82 per linear front foot. The Commissioners adopted this
linear front-foot rate as the bases of the assessment, and imposed it
upon all lots one hundred feet deep; short lots were given concessions
assumed by the City, viz., 12-1/2 per cent. off where the lot was 50
feet deep, 18-3/4 per cent. off where the lot was 25 feet deep, and in
that proportion. The Commissioners determined that as to all the lots
the assessment was less than the value of the lot, and less than the
benefit conferred, but gave no consideration as to the relative value of
the lots as between themselves.
In assessing appellant's triangular lot the following method was
adopted: The lot was divided lengthwise by an imaginary line into two
equal parts, one fronting on First avenue and the other on Elizabeth
avenue. The part on First avenue was not assessed. The part on Elizabeth
avenue was assessed at the regular rate of $8.82 for its 350 feet
frontage, a total $3,087.00, less three concessions: a concession of
12-1/2 per cent. ($110.25) was allowed on the westerly 100 feet
averaging fifty odd feet deep; a concession of 20 per cent. ($441.00)
was allowed on the remaining 250 feet averaging thirty odd feet deep;
and a concession of 25 per cent. ($68.35) was allowed for the 31 feet
fronting on Liberty Square. Total concessions, $619.61, leaving
$2,467.40 as the assessment levied. In addition to the concessions the
Commissioners made no assessment against the lot for its frontage on
Liberty Square.
The result reached by the Commissioners was to assess a lot 350 feet in
front on Elizabeth avenue, 15-1/2 feet deep at one end and 66-1/2 at the
other, nearly four-fifths as much as though the entire frontage had been
full lots 100 feet deep. This is unreasonable and I think more than
appellant's entire lot should be assessed.
I think the Commissioners erred in two respects in their method of
assessment:
1. It was improper to divide appellant's lot lengthwise for the purpose
of assessment. The lot was already too shallow for the greater part of
its frontage for ordinary building purposes, and to divide it further
was to leave two narrow strips, one fronting on Elizabeth avenue and the
other on First avenue, neither of any sale value, or practical value for
any purpose.
It was held by the Court of Errors and Appeals in Aldridge v. Essex Road
Board (51 N. J. L. 166) that assessors may not divide a lot for the
purpose of assessment so that, should a sale result to collect the tax,
the property would not bring as much as if sold as part of the original
parcel. The rule was followed in Coward v. North Plainfield (63 N. J. L.
61), where, as in the case at bar, an imaginary line was drawn midway
between two avenues.
2. I think the Commissioners erred also in disregarding the relative
benefit received by lots along the line of the improvement resulting
from location and value of the property. The assessment was strictly a
front-foot assessment with concessions for short lots, but disregarding
the element of location and relative value.
The 4th Ward assessment roll received in evidence shows substantial
variations in the value of properties on Elizabeth avenue, and
inspection of the line of improvement about a mile in length shows
greater traffic and better building and values toward Seventh street
than opposite and below appellant's lot. The intersection of Elizabeth
avenue and High street, a few feet West of Seventh street, is a business
center for that part of the City, and values and traffic are materially
greater in that vicinity than below Third street. It is manifest that
business houses dependent upon traffic for their business are more
benefited by a paving improvement than vacant lots at a distance where
there is less traffic.
It is well settled in New York that the relative value of lots and the
buildings upon them must be considered in determining the benefits
accruing from a paving improvement (Donavan v. Oswego, 39 Misc. 291, and
cases therein cited); and in State v. Rahway (39 N. J. L. 646; affirmed
by the Court of Errors and Appeals in 11 Vr. 615) a greater assessment
upon lots nearer a business center was approved in a grading, curbing
and guttering improvement.
The statute provides that "all assessments ... levied for any local
improvement shall in each case be as near as may be in proportion to the
peculiar benefit, advantage or increase in value which the respective
lots and parcels of land and real estate shall be deemed to receive by
reason of the improvement."
Under the circumstances existing in the case at bar, there being, as I
find, a difference in benefit along the line of the improvement
resulting from location and value, these elements should have been
considered by the Commission and such weight given them as in the
judgment of the Commissioners they should receive.
In reassessing appellant's lot I suggest a different ratio of
concessions for short lots. The concessions adopted by the Commissioners
are one-half the concessions allowed by the Newark, or Hoffman rule, in
valuing short lots in regular assessments. As evidenced by the result
reached in the assessment appealed from, the concessions are inadequate,
and I see no reason why the full concessions established by the Newark
rule should not be adopted.
It is not easy to formulate a rule that will do justice in all cases in
assessing irregular shaped lots, but I think a fair result would be
reached in the case at bar by deducting from the frontage assessment of
$3,087.00 a concession of 25% ($771.00) for the frontage and probable
future paving assessment on First avenue; a further concession at the
rates given by the Newark Rule for that portion of the lot under 100
feet in depth (20%--$441.00), less the added value under the same rule
for that portion over 100 feet in length (7%--$61.74) net $379.26; total
net $1,936.74; less such further concession for less than average
benefit received by appellant's lot as in the judgment of the
Commissioners should be allowed by reason of inferior location, value
and improvements.
As appellant's lot is not assessed for paving Liberty Square, no
concession should be made for frontage on Liberty Square.
For the reasons given, the assessment appealed from should be set aside
as to appellant's lot.
* * * * *
Inexcusable delay in presenting a check for payment is held to discharge
an indorser from liability thereon if the check is not paid, whether
he is in fact injured or not, in the West Virginia case of Nuzum v.
Sheppard, 104 S. E. 587, annotated in 11 A.L.R. 1024.
STATE v. GRUICH.
(Essex Quarter Sessions, Dec. 27, 1921).
_Criminal Abortion--New Trial--Postponing Sentence Days_.
Case of The State against Anne Gruich. On application for new trial.
Mr. Frank Bradner for Petitioner.
Mr. John A. Bernhard, Assistant Prosecutor of the Pleas, for State of
New Jersey.
STICKEL, Jr., J.: Anna Gruich was tried before this Court, Judge Harry
V. Osborne presiding, and, on February 21, 1919, convicted of abortion.
The minutes of the Court at the foot of the entry of the verdict of the
jury contain the words, "Sentence postponed."
On the 23rd day of May, 1919, the said defendant was convicted by a jury
on a second charge of abortion and, on June 5, 1919, sentence of both
convictions was imposed by Judge Osborne, the sentences running
concurrently.
The conviction on the second charge of abortion having been reversed by
the Court of Errors and Appeals at a recent term of that Court and a new
trial ordered, application is now made to this Court to grant a new
trial on the charge of abortion of which the defendant was convicted on
February 21st, 1919.
[Here two broad grounds are urged as warranting such action, the first
ground involving a question of fact; that part of the opinion is not
published. The second ground is that the Court, having postponed
sentence thereafter to in a new term of the Court and without having
noted in the minutes continuances of the day of sentence, imposed
sentence upon the defendant, the contention being the Court then had no
jurisdiction to impose any sentence. The opinion continues.--EDITOR].
And I am equally clear that there is no merit in her contention that the
Court had no jurisdiction to sentence in the April Term upon a
conviction had in the December Term.
The theory of the defendant seems to be that, because the minutes do not
show that the time for sentence was fixed and then postponed from time
to time until the sentence was actually imposed, therefore, no sentence
day was, in fact, fixed, no continuance had, and, when the December Term
expired, the power of the Court to fix a sentence day or impose a
sentence ended.
The sentence file of this Court will show that the assumption of counsel
is unwarranted, and that a day for sentence was fixed and regular
adjournments of that sentence had from time to time until the day upon
which sentence was imposed. But, even though we assume that no sentence
day was fixed and no continuance in fact taken, the position of counsel
in my judgment is unsound.
This case is controlled by the principles laid down in the opinion in
Gehrmann v. Osborn, 79 N. J. Eq. 430; 82 Atl. Rep. 424, and by the
decision in that case, and even though, as counsel for the defendant
suggests, I may not be bound by the decision in that case, the
reasoning, the logic and learning thereof is such that I am wholly
content to be governed thereby in determining this case, and convinced
that the decision in that case represents the law of this State.
There, as in this case, sentence was postponed, and, although more than
two years elapsed before the defendant was actually sentenced, and,
although the original postponement was the practical equivalent of an
indefinite postponement of sentence, the Court upheld a sentence to
State Prison. Here the sentence was imposed but a few months after
conviction, and the postponement was not the equivalent of an indefinite
postponement. And, like in the present case, there were no continuances
of the sentence recorded in the minutes.
"The conclusion which I have, therefore, reached," says Vice-Chancellor
Garrison, "in the Gehrmann case, is that in the State of New Jersey, if
a defendant has pleaded nolle contendere, or guilty, or has been
convicted upon trial, the Court has the power, if the defendant does not
object thereto, and therefore is assumed to assent thereto, to refrain
from pronouncing a judgment or sentence, and may, at a subsequent time,
hale the defendant before it, and impose the punishment in the same
manner that it would have been justified in pronouncing upon the very
day when the case was ripe for sentence."
It will be observed from the opinion that the duty rests upon the
defendant to object to an indefinite postponement of sentence; that his
failure so to do creates a presumption that he assented thereto, and
that his assent or acquiescence to such postponement disenables him to
complain when thereafter the Court imposes sentence, whether within or
without the term in which the conviction is had or plea taken.
Here not only is there no proof of an objection, but on page 23 of the
testimony it appears that the defendant at least acquiesced in the
postponement from time to time of the sentence.
Moreover, just as the research of the learned Vice-Chancellor convinced
him that an indefinite suspension of sentence has been the custom in our
State beyond the memory of those then connected with the administration
or practice of criminal law in this State, so, from my own experience as
a practitioner in and Judge of this Court do I know that for years it
has been the practice to sentence on a given Monday after conviction; to
sentence periodically all persons convicted or who have pleaded; to
enter in the minutes "Sentence postponed" in bail cases and prisoners
"Remanded for sentence" in jail cases and to advise defendant for
counsel, or both, in open Court of the regular sentence day; for the
clerk to make up a sentence list for said day; for the Court to use such
list in sentencing; for the Court to postpone to another day sentences
set down upon such sentence day when it so determined, the clerk noting
the postponement and placing the case on the new sentence list of the
Judge, and for the clerk to take the various sentence lists and file
them as a part of the records of this Court. This practice I find was
followed in this case and probably accounts for the repeated attendance
of the defendant at the courthouse for sentence. The defendant was
convicted on February 21st and the first sentence day of Judge Osborne
thereafter was February 24th, 1919. The defendant's name appears upon
this list for sentence and a notation is made that the sentence was
postponed to March 10th; the sentence list of March 10th shows a
postponement to March 24th; that of March 24th a postponement to April
14th; that of April 14th a postponement to May 5th; that of May 5th a
postponement to May 26th; that of May 26th to June 5th, and on June 5th
sentence was imposed. If there is any question about this and the case
is to be appealed, I would suggest that the Prosecutor submit as part of
the record on this rule evidence of the practice of this Court in
sentencing, together with the sentence lists of Judge Osborne covering
the period in question.
The rule obtained in this case is discharged and the application of the
defendant for a new trial denied.