
    LUCKENBACH TRAP ROCK CORPORATION, PROSECUTOR, v. THE TOWNSHIP OF NORTH BERGEN, IN THE COUNTY OF HUDSON, ET AL., RESPONDENTS.
    Argued January 20, 1938 —
    Decided August 11, 1938.
    Before Justices Case and Donges.
    For the prosecutor, Kelsey & Ludwig (Clarence Kelsey).
    
    For the respondents, Nicholas S. Schloeder.
    
   The opinion of the court was delivered by

Case, J.

The writ was directed to the township of North Bergen, the collector of taxes of that municipality and his assistant and the president of the Hudson county board of taxation. Service of the writ was acknowledged for all of those respondents by the attorney who now appears herein as attorney and counsel for the township and for the collector and his assistant. No return was made by the president of the county board. It was, of course, his duty to comply with the writ; but if, as it seems, there was no return by him, the prosecutor should have moved to compel one. We cannot assume what such a return would show.

The subject-matter of the writ was a proposed sale by the township collector of certain personal property of the prosecutor in order to make personal taxes wherein, with interest thereon, the prosecutor was said to be in default as follows:

‘1931, personal property $12,000 tax $876.24
1932, 12,000 750.72
1933, 12,000 628.56
1934, 12,000 591.84
1935, 12,000 460.08
1st y4 1936, 12,000 130.32
Personal tax $3,437.76
Interest 693.51
$4,131.27”

The warrant for sale was dated April 8th, 1936, and the date fixed for sale was April 15th, 1936. Rule to show cause, with stay, issued April 14th, 1936. The writ was allowed April 18th, 1936, and appears to have been continued from time to time by consent of the parties. The attempted sale for an unpaid first quarter of the 1936 tax was premature, even had the levy been duly made. Further, neither the assesssor’s duplicate nor the other records before us show assessments for the years 1934, 1935 and 1936. There is disclosed a 1934 assessment for personal property in the amount of $12,000 against Luckenbach Terminals upon which and other tax defaults there appears to have been a sale of the real estate of the last mentioned corporation; but the return brings us no explanation of the relationship between Luckenbach Terminals and the prosecutor herein or of the relationship of the named item to the matters under review.

Prosecutor also attacks the assessments, supra, for the years 1931, 1932 and 1933. However, the return shows tax assessments and unpaid taxes against prosecutor for those years as set up in the proceeding to sell. Upon the record before us no irregularity appears in the taxes levied for those years.

The tax sale proceedings will be set aside because of the reasons stated above with respect to the 1934, 1935 and 1936 taxes. Costs are allowed to prosecutor.  