
    JAMES M. BUTLER v. THE BOARD OF COMMISSIONERS OF THE TOWN OF KEYPORT.
    Argued June
    Decided November 13, 1899.
    A contemplated street opening having been in part defeated by the successful prosecution of a certwram by a party whose land was to be taken in the opening—Held, that an assessment for benefits made against another landowner upon the basis that the opening would be fully carried out, should be set aside.
    On certiorari.
    
    Before Justices Dixon and Collins.
    For the prosecutor, Charles L. Corbin.
    
    For the defendant, Frank P. McDermott.
    
   The opinion of the court was delivered by

Dixon, J.

On August 5th, 1898, the commissioners of the town of Keyport adopted an ordinance authorizing the extension, widening and opening of Mott street, and at the same time confirmed the award for damages and assessments for benefits previously made by commissioners of assessment because of the proposed improvement. Among the assessments was one of $50 against the prosecutor.

In the widening of the street thus contemplated, a strip of land two hundred feet long and thirty-five feet wide, belonging to the Freehold and Atlantic Highlands Railroad Company, was to be taken ; but on a certiorari prosecuted by that company, this court, in November, 1898, set aside the municipal proceedings so far as they affected the company’s land. Subsequently the present prosecutor sued out the writ now under consideration.

Manifestly, the improvement for which the prosecutor was assessed cannot be carried out, and thus he is deprived of that which was to be the legal equivalent of the charge imposed upon him. For that reason the assessment against him should be set aside.

Long before the prosecutor instituted his suit, he had notice that the town was likely to pay the awards made for land required for the improvement, and the town did pay many of them. Under these circumstances we think he should be precluded, as a taxpayer, from questioning the legality of the proceedings by which the lands were condemned.

The assessment against the prosecutor is set aside, with costs.  