
    HARRY FRANK, PROSECUTOR, v. MAYOR AND ALDERMEN OF JERSEY CITY ET AL., RESPONDENTS.
    Argued January 18, 1928
    Decided May 3, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the prosecutor, Warren Dixon.
    
    For the respondents, Frank J. Reardon.
    
   Per Curiam.

This writ brings before us for review assessments for the improvement of Lexington avenue, between Mallory and Marcy avenues in Jersey City, and the order of the Hudson County Circuit Court confirming such assessments.

Several reasons are assigned why the assessments and proceedings under review should be set aside.

These reasons may be grouped and considered as follows:

1. That the return does not show that any notice was given to the property owners of the hearing held by the commissioners of assessment, and that the Circuit Court confirmed the assessments without proof of such notice having been made.

Under section 5, chapter 52 {Pamph. L. 1925), amending section 42 of the Home Rule act {Pamph. L. 1917), chapter 152, the presumption is that all necessary notices have been given. The burden is upon the prosecutor to overcome this presumption, and we do not find anjr showing in that direction.

2. The Circuit Court confirmed the assessments without first directing and causing notice to be given to property owners of a time and place for hearing objections to the assessments.

Here, too, the presumption is that such notice was given and the order confirming recites that notice was given. There are, however, proofs showing that there is no record of any such notice which we think is sufficient to overcome the presumption that notice was given.

Por this reason the order confirming must be set aside and back to the Hudson Circuit Court so that a proper hearing upon notice may be had.

3. The order of confirmation was filed in the tax collector’s office without first having been entered in the minutes of the Circuit Court as required by section 3, chapter 72 {Pamph. L. 1925).

This is a mere matter of procedure, and would be of no importance in the matter before us except for the fact that respondent urges that the prosecutor was in laches in securing the present writ, and should not have the benefit of it, because he did not apply for it within thirty days from the date of the order confirming.

It is difficult to understand how this can be so if he had no notice of the hearing before the court and the order of the court was not entered in the minutes of its clerk. The question of laches is therefore without merit.

The remaining reasons are directed at the inequitableness and unfairness of the assessments and are not of importance, inasmuch as the order of confirmation must be set aside and the matter sent back to the Hudson County Circuit Court for proper action thereon.

Such will be the order and judgment herein.  