
    FIRST NATIONAL BANK OF FORT LEE, PROSECUTOR; MARIE L. HAMILTON AND LUCILLE HAMILTON, PROSECUTRICE, v. MAYOR AND COUNCIL OF THE BOROUGH OF ENGLEWOOD CLIFFS, BOROUGH OF ENGLEWOOD CLIFFS, AND HAROLD G. HOUGHTALING, COLLECTOR OF TAXES OF THE BOROUGH OF ENGLEWOOD CLIFFS, RESPONDENTS.
    Argued October 4, 1939
    Decided January 5, 1940.
    Before Justices Parker, Bodine and Perskie.
    For the prosecutor and prosecutrice, Milton T. Lasher.
    
    For the respondents, William M. Seuffert.
    
   The opinion of the court was delivered by

Perskie, J.

There are two writs of certiorari involved in this ease. The purpose of each is to review (1) a proposed tax sale which was to have been held nnder and by virtue of sewer assessments levied on November 18th, 1931, by the borough of Englewood Cliffs; and (2) a resolution of the mayor and council of said borough under date of October 13th, 1938, which resolution rescinded a previous resolution dated July 8th, 193?, which in turn had abated the balance due on the assessments.

Marie L. Hamilton and Lucille Hamilton (hereafter referred to as the Hamiltons) are the prosecntrice of one writ; and the Eirst National Bank of Port Lee (hereafter referred to as the Bank) sued out the other; it being the holder of a mortgage on the premises of Marie L. Hamilton, which [(remises are allegedly subject to the aforementioned assessment.

While the record before us does contain a “Return to Writ” in both the Hamilton and Bank cases, the schedules referred to in those returns, consisting of minutes of Jneetings of the respondent municipality and depositions are appended to the return in the Bank case only. Counsel, with the approval of Mr. Justice Bodine (see Phi Zeta Fraternity v. City of New Brunswick, 123 N. J. L. 237; 8 Atl. Rep. (2d) 553), have stipulated that the cases be argued together, apparently intending that the full return with schedules annexed in the Bank case be our record for both cases. We so regard it.

Prom the various minutes of the meetings of the mayor and council of respondent municipality we learn that a sewerage system was constructed in the municipality at a cost of $322,856.9?; that the Board of Assessors were requested to make an assessment npon the lands benefited by the improvement ; that notice was given by the hoard of a hearing during which it considered the assessment; that the Board of Assessors filed its report certifying the assessment; that due notice was given by the mayor and council of respondent municipality of a meeting to be held on November 18th, 1931, when the report of the board was to he considered; and that on November 18th, 1931, a resolution was-passed adopting and confirming the assessment as made by the Board of Assessors.

At this point it should be noted that the Hamiltons are owners of adjoining properties in the borough of Englewood Cliffs. These properties are known as Lot 10 in Block 8 and Lot IB in Block 8. Both of these lots are bounded on the west by a highway known as Hudson Terrace, lot 10 having a frontage of 111.28 feet on that highway and lot IB having a frontage of 125.34 feet thereon. Lot 1C has an average depth of 383 feet and the building located thereon is approximately 225 feet from Hudson Terrace, while lot IB has an average depth of 319 feet and the building located thereon is about 200 feet from Hudson Terrace. Hudson Terrace is within that part of the municipality wherein it constructed the sewerage system hereinbefore mentioned. By virtue of that fact, prosecutors’ properties were assessed $853.46 and $736.80, respectively, for the benefits allegedly accruing by virtue of the new system. Each of the Hamiltons paid some portion of their assessment from time to time until the summer of 1936. Marie Hamilton paid $260.47 and Lucille Hamilton paid $372.40.

Turning once again to the minutes of the meeting of the borough, we learn further that on May 27th, 1937, the mayor appointed a committee to investigate the matter of sewer assessments on the Hamiltons’ properties. This action was taken as a result of communications received from the Hamiltons who, notwithstanding the fact that they had made payments, apparently complained about the assessments. The matter was discussed by the council again on June 10th, 1937, and on July 8th, 1937, a resolution was passed abating the assessments levied upon the Hamiltons’ properties. Fifteen months later, on October 13th, 1938, without giving any notice of their intention to do so, the mayor and council of respondent municipality passed another resolution rescinding the one passed by it on July 8th, 1937, and reinstating the assessment.

In the meantime, on May 9th, 1935, Marie L. Hamilton, the owner of lot 10, block 8 and her husband executed a $5,000 mortgage on the premises to the Bank. The mortgage money was paid to the mortgagors by two checks. One check for $3,000 was turned over outright to the mortgagors, and the other check for $2,000 was endorsed by the mortgagors and retained by the Bank “for taxes and assessments which were open at the time.” Subsequently, on June 14th, 1935, the Bank paid ont of the $2,000 held by it the sum of $1,453 to respondent municipality for taxes. The remaining $547 was held by the Bank and on June 12th, 1936, $300 thereof was paid to respondent municipality. This sum was applied to the sewer assessment against lot 1C, block 8. The balance of $247 was retained by the Bank “pending settlement of [the] assessment situation.” On July 23d, 1937, the Bank procured an official tax search which did not disclose the existence of any assessment, and on July 31st, 1937, it paid the remaining $247 to the mortgagors.

Apparently no payment of the assessments was made to the municipality after the resolution of October 13th, 1938. Accordingly the Iiamiltons’ properties were listed for sale for the amount of the assessment, plus interest. The sale was to have taken place on June 17th, 1939, but we are told that it was stayed, pursuant to the mandate of the rules to show cause which were the basis for the allowance of the present writs.

At the outset respondents contend that the writs should he dismissed because of laches and because prosecutors failed to resort to the statutory tribunals before obtaining the writs of certiorari.

We find no merit in either of these contentions. So far as laches is concerned it will suffice to observe that prosecutors’ attack is leveled not upon the original assessment which was made on November 18tli, 1931, but rather upon the resolution of October 13th, 1938. Prosecutors’ insistment is not that the assessment should be set aside but rather that the resolution in question be held invalid. Under such circumstances we are not inclined to hold, nor does the record disclose, that there was either a sufficient lapse of time or a change in position. Accordingly the defense of laches is unavailing. Cf. Carr v. Merchantville, 102 N. J. L. 553 (at pp. 558, 559); 142 Atl. Rep. 1; Marjon v. Altman, 120 N. J. L. 16; 197 Atl. Rep. 724.

And while it is true that certiorari to review assessments for benefits as excessive will be denied where prosecutor has not first resorted to the statutory tribunals (Graham v. Ocean City, 98 N. J. L. 426, 429; 119 Atl. Rep. 772), that principle has no application to the instant case. Eor here, although prosecutors argue that the assessment was void because the value of the property was allegedly not enhanced by the improvement, that question is not properly before us. Becker v. Garwood, 96 N. J. L. 327, 330; 115 Atl. Rep. 334. The writs are concerned with the validity of the stated proceedings.

We are entirely satisfied that the resolution of October 13th, 1938, is invalid and should be set aside. This resolution merely rescinded a prior resolution under date of July 8th, 1937. If the prior resolution was valid, and we are not to be understood as expressing any opinion on this score, prosecutors “acquired vested rights thereunder which could not be taken from them.” Cf. Montefiore Cemetery Co. v. Newark, 3 N. J. Mis. R. 1100, 1101; 130 Atl. Rep. 730; Hudson Telephone Co. v. Jersey City, 49 N. J. L. 303; 8 Atl. Rep. 123; Phillipsburg, &c., Power Co. v. Phillipsburg, 66 N. J. L. 505; 49 Atl. Rep. 445; Peerless Oil Co. v. Hague, 4 N. J. Mis. R. 148; 132 Atl. Rep. 332; Grossman v. Mayor, &c., Jersey City, 6 N. J. Mis. R. 688, 689; 142 Atl. Rep. 558. And if, on the other hand, as respondents contend, the prior resolution was invalid, on which question as already indicated no opinion is expressed, “it was not for the municipality to pass judgment upon its own act.” Montefiore Cemetery Co. v. Newark, supra; Phillipsburg, &c., Power Co. v. Phillipsburg, supra. Cf. Decker v. Board of Excise, Elizabeth, 57 N. J. L. 603; 31 Atl. Rep. 235; Vanaman v. Adams, 74 N. J. L. 125; 65 Atl. Rep. 204. In either circumstance, therefore, the resolution presently under attack, must fall. And, the resolution being invalid, the proposed tax sale based at least in part on that resolution, is likewise improper.

This view of the cases renders unnecessary any discussion of the additional points raised by the TFTamiltons and the Bank.

Accordingly the resolution under date of October 13th, 1938, and the tax sale proceedings are set aside as to both prosecutors, with costs.  