
    TOWN OF KEARNY, PROSECUTOR, v. STATE BOARD OF TAXES AND ASSESSMENT AND CONGOLEUM-NAIRN COMPANY, DEFENDANTS.
    Submitted May 26, 1927
    Decided September 16, 1927.
    1. As a general rule, costs will not be awarded as against a state agency.
    2. Where a judgment has been reversed in an appellate court, and a new trial awarded, where the reversal is on account of error by the trial court, and such reversal does not finally determine any issue between the parties, costs should not be awarded at law in the appellate court.
    On application for award of costs in favor of prosecutor.
    Before Justices Parker, Black and Campbell.
    Eor the prosecutor, Hobart & Minard.
    
    Eor the defendants, John Milton and John J. Mulvaney.
    
   The opinion of the court was delivered by

Parker, J.

On certiorari to a judgment of the state board, reducing the valuation for taxation of the plant of the Congoleum-Nairn Company, the town of Kearny, as prosecutor, was successful to the extent of obtaining the judgment of this court that the state board proceeded illegally in reaching its judgment, and that such judgment be set aside. Kearny v. State Board, 4 N. J. Mis. R. 834. This normally required that the case go back to the state board for a retrial conducted according to the principles laid down. The prosecutor, preferring the direct action of this court, applied to have us fix the valuation, which we declined to do {ante, p. 36), and on appeal our refusal was sustained. Post, p. 699. Then the prosecutor applied for award of costs in the Supreme Court ad interim as the successful litigant in that court.

It is plain that costs should not go as against the state board, because it is a state agency, not to mention the fact that it is the statutory tribunal whose judgment was reversed. Tenement House Board v. Schlechter, 83 N. J. L. 88; Rayner v. Benjamin, 88 Id. 83, 86; Manufacturers’ Land Co. v. Board, 98 Id. 638, 642.

As to the Congoleum-Nairn Company, the case is within the well-settled rule that where a judgment is reversed in an appellate court, and a new trial awarded, where the reversal is on account of error in the trial court, and such reversal does not finally determine any issue between the parties, costs should not be awarded at law in the appellate court. Lehigh Valley Railroad Co. v. McFarland, 44 N. J. L. 674; Lynch v. Public Service Railway Co., 83 Id. 783; Reed v. Public Service Railway Co., 98 Id. 356.

As noted in the last case, the matter is within our discretion. Rosenkranz v. Wolf, 87 N. J. L. 311. But this seems conspicuously a case in which that discretion should not be exercised in favor of an award of costs at this stage, as against the Congoleum-Nairn Company, which was in no way responsible for the procedural action taken by the state board.

The application is therefore denied.  