The opinion
Parker, J.
(Concurring in result.) I agree that the judgment of the Supreme Court should be affirmed to the extent of setting aside the refusals, in view of the facts relative to the premises in question and the neighborhood, ¿is found by that court and stated in its opinion, and which led the court to the conclusion that the failure to grant to. the prosecutor-respondent a permit to build a gasoline station was unreasonable and therefore void, but do not concur in the further holding by the Supreme Court,, that the zoning ordinance of Newark “excludes gasoline stations throughout the city” and the adjudication that to that extent the ordinance will he set aside. This construction of the ordinance is challenged here on substantial grounds, and seems to be in conflict with the decision of the same court touching a similar ordinance, in
Schnell
v.
Ocean
Township, 120
N. J. L.
194. Passing the point that the City of Newark in its corporate capacity is not a party'to this litigation, and that the writ was not directed to the ordinance but to the decision of the Board of Adjustment, I think the ordinance expresses the intent, not that there shall be no gasoline stations (called “public garages”) in the city, but that they are in a class requiring action of the Board of Adjustment in the first instance, passing over the head of the building inspector who is without authority to grant any variances.
*379
On the factual merits, the judgment setting aside the refusal of the Board of Adjustment should be affirmed.
I am authorized by the Chief Justice to add that he concurs in the views above expressed.
For affirmance not on opinion
— The Chief Justice, Parker, J. 2.
For affirmance
— The Chancellor, Donges, Heher, Colie, Dear, Wells, Eafferty, Hague, Thompson, JJ. 9.
For reversal
— Hone.