# Brown v. Terhune

> Supreme Court of New Jersey · January 9, 1942 · 127 N.J.L. 554

URL: https://www.frixlaw.com/law-library/cases/3561058

## Case

- **Full name:** Milton Brown, Prosecutor-Respondent, v. Maitland B. Terhune, Superintendent of Buildings of the Village of Ridgewood, and the Village of Ridgewood, Defendants-Appellants
- **Court:** Supreme Court of New Jersey
- **Decided:** January 9, 1942
- **Citations:** 127 N.J.L. 554; 23 A.2d 575; 1942 N.J. LEXIS 200
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Donges
- **Judges:** Donges
- **Cited by:** 3 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3561058

## Opinion text

The opinion of the court was delivered by
Donges, J.
This is an appeal from a judgment of the Supreme Court setting aside an amendment to the zoning ordinance of the appellant Village of Ridgewood. The rule for judgment further directs the issuance of a peremptory writ of
mandamus
to compel the issuance to respondent of a permit for the erection of a gasoline service station.
On October 16th, 1940, respondent, who had entered into a contract for the purchase of premises 75-83 Godwin Avenue, in Ridgewood, applied for a permit for the erection of a service station at that location. At that time, the
locus
was in a zone in which such structures and such use were not prohibited by the zoning ordinance. There was, however, an amendment pending, having been passed on first reading on October 8th, 1940, which put the premises in a two-family residence zone, where gasoline stations were not permitted. This amendment was adopted on October 22d, 1940. The building superintendent, when application was presented to him by the attorney for the applicant on October 16th, declined to pass upon it, saying that he needed more time. Thereupon he was served with notice of application for
mandamus.
On October 21st, the matter was heard and
mandamus
was denied. On October 22d, a writ of
certiorari
was allowed to review “a certain decision” rendered by the superintendent rejecting the application and all things touching and concerning the same. That night, after the allowance of the writ, the amendment to the zoning ordinance was adopted.
On the return of the writ, the Supreme Court held the amendment unreasonable and set it aside. The opinion further held that the respondent was entitled to a writ of
mandamus.
Following the opinion of the Supreme Court, a peremptory writ of
mandamus
was issued and it was complied with by the issuance of the permit for the erection of the gasoline station,
*556
as well’as other permits necessary for the demolition of existing structures and for other work. It is stated in the briefs of both parties that the work has progressed and is nearly completed. Appellant further asserts that the permit for the gasoline station was issued in compliance with the writ of
mandamus.
There has been no application to mold the pleadings to permit a review of the issuance of the mandamus, hence there can be no review of that proceeding.
The real question involved was the refusal of the superintendent of buildings to issue a permit, as applied for by respondent. This was the only matter subject to review when the writ of
certiorari
issued. It appears, therefore, that inasmuch as there can be no review of the order for
mandamus
and the appellants have complied with the request and with the order of the Supreme Court, there is no pending question for determination.
The appeal is dismissed.
For dismissal
— The Chancellor, Chief Justice, Parker, Case, Donges, Heher, Perskie, Colie, Dear, Wells, WolfsKeil, Rafferty, Hague, Thompson, JJ. 14. ■

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3561058. Public record. Not legal advice.