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nance.

The opinion of the court was delivered by

TRENCHARD, J. This writ of certiorari brings up for review an assessment for benefits conferred by the construction of sewers, made upon the lands of the prosecutor in the territory formerly the borough of Vailsburgh, now a part of the city of Newark.

On November 16th, 1903, an ordinance to establish a system of lateral sewers, to be connected with the joint trunk

outlet sewer, was introduced in the borough council of Vailsburgh. On December 9th, 1903, it passed finally and was approved by the mayor. There was no notice of intention to pass the ordinance given, nor any notice that it was pend

After its passage, and on the same day, a resolution was passed by the council to raise by bond issue the sum of $60,000 to defray the cost of the sewers provided for in the ordi

This was in accord with the resolution adopted at a public meeting called by the borough council and attended by citizens, held November 12th, 1903. At that meeting a resolution was unanimously adopted (all persons present being allowed to vote) that the system of sewers should be constructed at the expense of the borough and that no assessments should be made for the benefits arising from the improvements. The borough made no assessment for benefits, but issued and sold the bonds to pay for the entire cost of the sewers. After the sewers had been constructed, and sinking fund and interest charges paid on the bonds for one year,

on January 1st, 1905, Vailsburgh was annexed to the city of Newark under the provisions of an act approved March 29th, 1904. Pamph. L., p. 379. Under the terms of the annexation the city of Newark was required to pay the bonded indebtedness of Vailsburgh.

After the annexation of the borough to the city of Newark the legislature passed an act entitled “An act to authorize consolidated and annexed municipalities to make assessments for local improvements," approved April 29th, 1905 (Pamph. p. 414), declaring in substance that whenever munici

or portions thereof, have been annexed to, or consoliwith any other city, and any local improvement

and

palities, dated

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or improvements have been or shall be made in and by such municipality so annexed, prior to such annexation or consolidation, for or on account of which no assessment has been or shall be made upon the property in such municipality peculiarly benefited thereby, it shall be lawful for the proper local authorities of the city to which any such municipality is or shall be annexed, to make an assessment upon all property peculiarly benefited by such improvement.

Under this act the commissioners of assessment of the city of Newark have proceeded to levy an assessment for benefits upon the property of the prosecutor within the limits of what was formerly the borough of Vailsburgh, for the construction of the lateral sewers in Vailsburgh under the ordinance of December 9th, 1903. The assessment was presented to the judge of the Circuit Court and the rule confirming the report was signed and entered on January 16th, 1908, and on March 14th, 1908, this writ was allowed to review the same.

The prosecutor insists that the assessment was made without due process of law, and we think it was.

It is the right of a landowner specially affected by a public improvement to be informed, either by actual or constructive notice, of the time and place appointed for the meeting of council to consider their proposed action. This is so because the act is judicial in character; it being contrary to natural justice that a person should be bound by proceedings of a judicial character affecting his person or property without having an opportunity to be heard. Camden v. Mulford, 2 Dutcher 49; State v. Orange, 3 Vroom 49; State v. Jersey City, 5 Id. 31; West Jersey Traction Co. v. Board of Public Works of Camden, 27 Id. 431; Landis v. Vineland, 31 Id. 261; Sears v. Atlantic City, 43 Id. 435; affirmed, 44 Id. 710.

This right was denied the prosecutor, for there was no notice, either actual or constructive, to him. The public meeting of November 12th, 1903, did not amount to notice of an intention to pass an ordinance which might put a burden upon the property of the prosecutor. State v. Morristown, 5 Vroom 445, 454. It was not, strictly speaking, a

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meeting of council, but rather a meeting of citizens of the borough, and was held several days before the ordinance in question was introduced. Moreover it was not adjourned, nor the subject matter continued, to any time or place. On the contrary, the action taken at that meeting, the subsequent action of council in adopting the ordinance without notice, the making of the contract, the issuing of bonds for the payment of the whole cost, indicates that no assessment against the prosecutor was contemplated. By the supplement to the Joint

Sewer act, approved April 8th, 1903 (Pamph. L., P. 197), council was authorized to determine by ordinance or resolution that the special benefits conferred upon property by the sewers in question should not be assessed upon the property specially benefited thereby, and it appears that council had been so advised by the borough solicitor.

Because of want of notice, either actual or constructive, to the prosecutor, the ordinance is wholly ineffectual as a basis for the assessment in question.

The ordinance upon which the assessment in question neeessarily rests being invalid for want of jurisdiction by competent notice to the prosecutor, the defect is fundamental in that it deprived him of his constitutional right to be heard and it cannot be remedied by subsequent legislation such as the act of 1905. Pamph. L., p. 414. Boice v. Plainfield, 9 V room

Jacuell v. Goetschius, 11 ld. 383; Meredith v. Perth Amboy, 34 Id. 520.

The prosecutor is not precluded from challenging the assessment by reason of the fact that he did not attempt to set aside the ordinance until after an assessment had been made under it, because the case shows that he was led to believe that the general scheme of improvement was to be made at public expense, and that no assessment would be levied against his property. Ogden v. City of Iludson, 5

The assessment under review, together with the preliminary proceedings upon which it rests, so far as they affect the prosecutor, must be set aside and vacated, with costs.

10

95 ;

Dutcher 475.

Vol. XLIX.

Home Coupon Exchange Co. v. Goldfarb.

78 N. J. L.

HOME COUPON EXCHANGE COMPANY, PLAINTIFF AND

APPELLEE, V. SAMUEL GOLDFARB, DEFENDANT AND
APPELLANT.

Submitted March 18, 1909-Decided October 15, 1909.

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1. By section 4 of the act of June 20, 1905 (Pamph. L., p. 194), a

judge of the District Court is empowered to try causes without a jury and give judgment, unless a jury be demanded at least

one day before the return day of the summons. 2. It is only when the minds of parties to a lease concur in the

common intent of relinquishing the relation of landlord and tenant, and execute that intent by acts tantamount to a stipulation to put an end thereto, that a surrender by act and operation

of law a rises. 3. Facts found by the District Court will be presumed to rest on

competent proof when nothing appears to the contrary.

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On appeal from the First District Court of the city of Newark.

Before Justices REED, TRENCHARD and MINTURN.

For the appellant, Michael J. Tansey.

For the appellee, Frederick Jay and William C. Headley.

The opinion of the court was delivered by

TRENCHARD, J. Samuel Goldfarb, the defendant below, became surety for the payment "of the rent for two months,” reserved by a lease made by the plaintiff to one Margulies for å store building in Newark. He also became surety for “the performance of any covenant therein contained” upon the part of the tenant.

This suit was brought in the First District Court of the city of Newark to recover the balance of two months' rent alleged to be due, and the judge, sitting without a jury, rendered judgment for the plaintiff.

49 Vroom.

Home Coupon Exchange Co. v. Goldfarb.

The defendant alleges as his first reason for reversal that the judge heard the case without a jury, against the objection of the defendant.

The right of the judge so to do depended upon whether a jury had been demanded "at least one day before the return day of the summons.” Pamph. L. 1905, p. 494, 8 4. An examination of the state of the case fails to disclose that any such demand was seasonably made.

The second reason urged for reversal is that recovery was precluded by an alleged acceptance by the landlord of the tenant's surrender of the term.

By the statute of frauds such a surrender must be in writing un less arising by act and operation of law. Gen. Stat., p. 1602, § 2. There was no writing which in terms purported to be a surrender, but it is insisted that there was one by act and operation of law. There arises such a surrender only when the minds of the parties to the lease concur in a com

intent of relinquishing the relation of landlord and tenant, and execute that intent by acts tantamount to a stipulation to put an end thereto. Jones v. Rushmore, 38 V room 157 ; Meeker v. Spalsbury, 37 Id. 60.

It is contended that such intent is conclusively shown by the entry of the landlord for the distress of goods for rent for a month of the term prior to that for which this suit is brought, and his subsequent receipt of that rent. But certainly that was not necessarily inconsistent with continuance of the relation of landlord and tenant. Moreover, the trial judge found as a fact that there was no surrender of the term. It is true that the evidence taken is not set out in the state of the case, but the rule is that facts found by the District Court will be presumed to rest on competent proof, when nothing appears to the contrary. The result is that the judgment of the District Court will

mon

be affirmed

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