# Union Terminal Cold Storage Co. v. Spence

> Supreme Court of New Jersey · December 20, 1954 · 17 N.J. 162

URL: https://www.frixlaw.com/law-library/cases/9751254

## Case

- **Full name:** Union Terminal Cold Storage Company, Inc., Plaintiff-Appellant, v. Donald Spence, Director of Finance, Etc., Defendant-Respondent
- **Court:** Supreme Court of New Jersey
- **Decided:** December 20, 1954
- **Citations:** 17 N.J. 162; 110 A.2d 110; 1954 N.J. LEXIS 186
- **Precedential status:** Published
- **Opinion:** Concurrence by Burling
- **Judges:** Oliphant, Burling, Vanderbilt, Heher, Olipi-Iant, Wacheneeld, Jacobs, Brennan, None
- **Cited by:** 56 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Burling, J.
(concurring). I am in agreement with the result attained by the majority of the court, namely, reversal of the summary judgment for the defendants. However, I favor a divergent result as to the effect and method of application of B. 8. 54:2-43, as amended by L. 1946, c. 161, sec. 14.
It seems to me that B. 8. 54:2-43, as amended, supra, is mandatory but not self-executing. In other words, it is binding (if there is no increase in property value) upon the assessor in the maleing of assessments (for the two assessment years succeeding the assessment year subjected to adjudication).
*169 The collector of taxes is not authorized by R. 8. 54:2-43, as amended, supra, on his own initiative to collect a reduced tax from the taxpayer. The collector’s statutory duties are to complete and deliver tax bills as soon as the tax duplicate is delivered to him. R. 8. 54:4-64. The duplicate must be delivered to him on or before April 1. R. 8. 54:4^55. The collector must enter the date and amount of payments made on the duplicate and in his cash book. R. 8. 54:4h-71. On March 1 of the succeeding year he must file with the treasurer of the taxing district a statement of the amount of taxes received and of the amount remaining unpaid. R. 8. 54:4-91, as amended by L. 1944, c. 115, sec. 1.
The majority held that L. 1940, c. 229, sec. 1, N. J. S. A. 54:4-8.2 authorizes the collector to reduce taxes for subsequent years under R. 8. 54:2-43, as amended, supra, in addition to collecting the adjudicated reduced tax for the assessment for the year appealed.. It seems to me it applies only to the taxes for the assessment year appealed.
However, statutory authority for correction of the situation exists. Under R. 8. 54:4r-99 and R. 8. 54:4-100, as amended by L. 1949, c. 202, sec. 1, the municipal governing body is authorized to make abatement, revision, adjustment and settlement of past due taxes, especially where the taxes are “illegal in whole, or in part.” The provisions of R. 8. 54:4^-99, supra, and R. 8. 54:4-100, as amended, supra, seem to require the municipal governing body to act only on application by the taxpayer. The action of the municipal governing body is qualified by the authority vested in the governing body, R. 8. 54:4-99, to effectuate the adjustment of taxes “as it shall deem equitable and just and be for the best interests of the municipality.” Under the circumstances of the present case, the quoted language appears to refer to the mode of allowance of adjustment of taxes.
In the present matter the taxing district, i. e., the City of Jersey City, was added as a defendant. It has not contended that the immediate reduction of the taxes in question to conform to the legal amount of the assessment under R. 8. *170 54:2-43, supra, would be opposed to the best interests of the municipality.
Since it is admitted upon the appeal that there was no change in the value of the property assessed, under the circumstances of this case, for the reasons hereinbefore expressed, I would reverse the judgment of the Superior Court, Law Division, and remand the matter for entry of judgment for the plaintiff requiring the taxing district, the City of Jersey City, to abate the past due taxes of the plaintiff involved in this appeal to the extent that they are illegal in part under B. 8. 54:2-43, supra.
Burling, J., concurring in result.
For reversal — Chief Justice Vanderbilt, and Justices Heher, Olipi-iant, Wacheneeld, Burling, Jacobs and Brennan — 7.
For affirmance — None.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9751254. Public record. Not legal advice.