NORTH BERGEN TWP. v. LUCKENBACH TERMINALS, INC., 129 N.J. Eq. 387 (1941)

19 A.2d 331

TOWNSHIP OF NORTH BERGEN IN THE COUNTY OF HUDSON, complainant, v. LUCKENBACH TERMINALS, INC., a corporation of the State of New Jersey, et al., defendants.

Docket 130/336Court of Chancery.
Dated March 31st, 1941.

1. An answer generally denying all the averments of the bill of complaint, violates rule No. 67 of the Court of Chancery.

2. The general denial in this case is without merit because the truth of the allegations set out in the bill of complaint was passed upon by this court in a previous phase of the case, and affirmed by the Court of Errors and Appeals. This court will take judicial notice of its former decision.

3. The effect of certain separate defenses challenging the assessment and the tax sale that led to the tax lien which complainant seeks to foreclose in this proceeding, was to stay the proceedings for a period of four months to enable defendant to apply for a writ of certiorari. Defendant having failed to obtain the writ, said defenses were stricken under the provisions of R.S. 54:5-102.

4. Defense that the bill of complaint does not describe with precision the lands that are the subject of the tax lien foreclosure, held sham, where the bill not only describes the lands by metes and bounds but also sets forth the lot and block numbers on the township assessment map.

5. Defense that the bill of complaint was filed two days before the decree in the previous phase of the case was entered as a result of the coming down of the remittitur, held frivolous.

On bill, c.

Mr. Nicholas S. Schloeder, for the complainant.

Mr. Clarence Kelsey, for the defendant Luckenbach Terminals, Inc.

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KAYS, V.C.

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 24th, 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. 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, and affirmed by the Court of Errors and Appeals in 127 N.J. Eq. 93. This court will take judicial notice of its former decision. The answer 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. The defendant failed to obtain a writ of certiorari and, therefore, said defenses were stricken under R.S. 54:5-102. See B.H.K. Realty Co. v Scarlet, 105 N.J. Eq. 707; Paramount Investment Corp. v Jessop, 117 N.J. Eq. 8.

The seventh separate defense is that the bill of complaint does not describe with precision the lands, c., 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 ninth separate defense alleges that the bill of complaint in this case was filed two days before the decree in the case o Luckenbach Terminals, Inc., v. Township of North Bergen et al., was entered as a result of the coming down of th remittitur in that case from the Court of Errors and Appeals. Such a defense is frivolous.

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