Opinion
130/336
03-31-1941
TOWNSHIP OF NORTH BERGEN v. LUCKENBACH TERMINALS, Inc., et al.
Nicholas S. Schloeder, of Union City, for complainant. Clarence Kelsey, of Jersey City, for defendant, Luckenbach Terminals, Inc.
Suit by the Township of North Bergen in the County of Hudson against Luckenbach Terminals, Inc., and others to foreclose a tax lien. On notice by complainant to strike out defendant's answer.
Order in accordance with opinion.
See, also, 125 N.J.L. 334, 15 A.2d 793.
Nicholas S. Schloeder, of Union City, for complainant.
Clarence Kelsey, of Jersey City, for defendant, Luckenbach Terminals, Inc.
KAYS, Vice Chancellor.
This matter came before me on notice by the complainant to the defendant, Luckenbach Terminals, Inc., to strike out its answer. I advised an order dated January 24, 1941, striking out the answer from which order, I am informed, an appeal has been taken to the Court of Errors and Appeals.
The bill in this case was filed to foreclose a tax lien held by the complainant. Paragraph 1 of the answer generally denies all the averments of the bill of complaint, which violates rule No. 67 of this court, N.J.S.A. tit. 2. Even though the general denial of the complaint is in violation of said rule, such denial is in fact without merit because the truth of these same allegations was passed upon by this court in the case of Luckenbach Terminals, Inc., v. Township of North Bergen, 125 N. J.Eq. 562, 6 A.2d 548, and affirmed by the Court of Errors and Appeals in 127 N.J. Eq. 93, 11 A.2d 46. This court will take judicial notice of its former decision. Theanswer then sets up nine separate defenses.
The separate defenses numbered 1 to 6 inclusive and 8 challenge the assessment and proceedings of the tax sale. The effect of such defenses was to stay the proceedings in this court for a period of four months to enable the defendant to apply for a writ of certiorari. R.S. 54:5-101, N. J.S.A. 54:5-101. The defendant failed to obtain a writ of certiorari and, therefore, said defenses were stricken under R.S. 54:5-102, N.J.S.A. 54:5-102. See B. H. K. Realty Co. v. Scarlet, 105 N.J.Eq. 707, 149 A. 543; Paramount Investment Corp. v. Jessop, 117 N.J.Eq. 8, 174 A. 581.
The 7th separate defense is that the bill of complaint does not describe with precision the lands, etc., which it seeks to foreclose. This defense is sham. The description set forth in paragraph 4 of the bill of complaint not only describes the lands by metes and bounds but also sets forth the lot and block numbers on the township assessment map.
The 9th separate defense alleges that the bill of complaint in this case was filed two days before the decree, in the case of Luckenbach Terminals, Inc., v. Township of North Bergen et al. was entered as a result of the coming down of the remittitur in that case from the Court of Errors and Appeals. Such a defense is frivolous.