
    STATE, LEHIGH VALLEY RAILROAD COMPANY, PROSECUTORS, v. MAYOR AND COMMON COUNCIL OF THE CITY OF NEWARK AND THOMAS AGENS.
    1. The allowance of costs on certiorari is in the discretion of the court.
    2. Where an assessment of taxes has been made in good faith on property which, by the prosecutor’s charter, is exempt from taxation, costs will not be allowed to the prosecutor on setting aside the taxes on certiorari, where application for relief has not been made to the local authorities, unless the defence in the certiorari suit has been conducted vexatiously.
    On certiorari to set aside assessments of taxes and declarations of sale.
    Argued at February Term, 1882, before Justices Deptte and Parker.
    For plaintiff in certiorari, T. N. McCarter.
    
   The opinion of the court was delivered by

Depue, J.

Two writs of certiorari were sued out by the prosecutor to removeassessments of taxes and the declarations of sale thereon, for the years 1873, 1874, 1875, 1876, 1877, 1878 and 1879. The writs were allowed June 19th, 1880. They were sued out in aid of a defence in an action of ejectment, so that their allowance was a matter of right without regard to time. Rev., p. 1045, § 15; State, Baxter, pros., v. Jersey City, 7 Vroom 188. Otherwise the writs would be dismissed with respect to some of those assessments, for laches. State, U. N. J. R. R. & C. Co., pros., v. Binninger, 13 Vroom 528.

The prosecutor is the lessee of the Morris Canal and Banking Company, and the lands with respect to which the taxes were laid appear by the depositions to be such as were exempt from taxation under the charter of the latter company. State v. Betts, 4 Zab. 555. The assessments, with the declarations of sale thereon, must therefore be set aside.

But the reversal should be without costs. The allowance of costs on certiorari is in the discretion of the court. Bev.,p. 99, § 8. In allowing or disallowing costs to the successful party, the court will be governed by the circumstances of the particular case.

The premises on which • the taxes were laid are situate on Washington street, in the city of Newark, adjacent to the Morris canal, and known as No. 198 Washington street. They were acquired by the canal company in 1871, in exchange for a lot the company owned in Madison street, which was held and permitted to be used as a free dock for the use of shippers on the canal. The Madison street lot had upon it a sign indicating that it was a free dock. This sign was never put upon the Washington street lot. The latter premises were enclosed, and had on them an office, which was sometimes occupied by persons not employed by the company. They were, in fact, used very little for the loading, unloading and storage of freight shipped on the canal, and had the appearance of being property for which the prosecutor was taxable. State, Morris Canal and Banking Co., pros., v. Love, 8 Vroom 60.

The depositions show that the premises were enclosed to keep off nuisances, and the occupants were mere custodians of the property without paying rent, with the privilege of storing and selling a little coal on them, allowing others the free use of the dock if they required it. The property was, therefore, such as was exempt from taxation under the charter of the Morris Canal and Banking Company.

There are no grounds for believing that the taxes were not assessed in good faith. The sales for taxes were regularly advertised. No application was made to the commissioners of appeal in cases of taxation to remit the taxes, or to the common council for relief.

Where an assessment for taxes has been made in good faith on property which is exempt from taxation, costs will not be allowed to the prosecutor on a certiorari on setting the taxes aside, where no application for relief has been made to the proper local authorities, unless the defence to the certiorari suit has been conducted vexatiously.

The assessments and declarations of sale are set aside, with■out costs.  