The opinion
*346
The opinion of the court was delivered by
Perskie, J.
This cause is before us on the return of an alternative writ of
mandamus.
Relator seeks to compel the building inspector of the town of West New York to issue to it a permit to erect a five-story apartment house on its premises.
The record submitted is much the same as was the record before the Court of Errors and Appeals in a recent case involving the identical parties and a substantially similar issue. See
Eastern Boulevard Corp.
v.
Willaredt,
123
N. J. L.
269; 8
Atl. Rep. (2d)
688. It will accordingly suffice to observe, so far as this case is concerned, that in opposition to the allowance of a peremptory writ respondents rely upon an amendment to the zoning ordinance of the town of West New" York which amendment has been held by the Court of Errors and Appeals to be “applicable to the relator’s case, and * * * jf properly adopted and reasonable, a bar to the issuance of a permit and a writ of
mandamus.” Eastern Boulevard Corp.
v.
Willaredt, supra
(at
p.
373). Relator on the other hand urges that the amending ordinance is unreasonable, unconstitutional and void, and thus not a bar to the allowance of a peremptory writ.
We do not find it necessary to express any opinion, nor are we to be construed as so doing, on the question of the reasonableness of the ordinance in question. For we are entirely satisfied that a peremptory writ should not be granted.
It is axiomatic that
mandamus
will not lie unless,
inter alia,
the right to the writ is clear both in fact and in law.
Jacobs
v.
Elwell,
8
N. J. Mis. R.
495; 151
Atl. Rep.
61 ;
Hoffmeir
v.
Union City,
4
N. J. Mis. R.
839; 134
Atl. Rep.
610 ;
Bimer
v.
West Hoboken,
3
N. J. Mis. R.
318; 128
Atl. Rep.
153 ;
State
v.
Butler,
3
N. J. Mis. R.
424; 128
Atl. Rep.
578 ;
Troy
v.
Barnitt,
11
N. J. Mis. R.
275; 165
Atl. Rep.
576 ;
Edell
v.
McDermott,
11
N. J. Mis. R.
272; 165
Atl. Rep.
719 ;
Cooper
v.
State Board of Veterinary Medical Examiners,
114
N. J. L.
10; 175
Atl. Rep.
207 ;
affirmed,
115
N. J. L.
115; 178
Atl. Rep.
748 ;
Ziegler
v.
City Manager, &c., Hackensack,
115
N. J. L.
328; 180
Atl. Rep.
225 ;
*347
Yedid
v.
Atlantic City,
14
N. J. Mis. R.
124; 182
Atl. Rep.
817 ;
Jones
v.
Orlando,
119
N. J. L.
227; 195
Atl. Rep.
717 ;
Provident Institute for Savings
v.
Castles,
124
N. J. L.
50; 11
Atl. Rep. (2d)
64. And in view of the existence of an amending ordinance before us which as already indicated has been found by the Court of Errors and Appeals to be a bar, if reasonable, to the relief presently sought it is manifest that relator’s right to that relief is not clear unless and until the ordinance in question is held in proper proceedings, to be invalid. See
Steward
v.
Trenton,
9
N. J. Mis. R.
1100; 156
Atl. Rep.
844 , and
Cf. Mulleady
v.
Trenton,
9
N. J. Mis. R.
1102; 156
Atl. Rep.
843 ;
Jacobs
v.
Elwell, supra; Linden Methodist Episcopal Church
v.
Linden,
113
N. J. L.
188; 173
Atl. Rep.
593 (involving
certiorari
to set aside an ordinance as unreasonable).
Whatever may have been the proper practice prior to the zoning amendment to our constitution and the enabling statute passed in 1928 (see cases collated in
Dorsey Motors, Inc.,
v.
Davis,
13
N. J. Mis. R.
620 (at
p.
621); 180
Atl. Rep.
396 ), we are of the opinion that the proper practice at this time is that outlined in
Payne
v.
Sea Bright,
14
N. J. Mis. R.
756 (at
p.
758); 187
Atl. Rep.
627 , which is not inconsistent with the effective practice of employing both
certiorari
and
mandamus
as in the typical case of
Gabrielson
v.
Glen Ridge,
13
N. J. Mis. R.
142; 176
Atl. Rep.
676 . In the latter circumstance if the right is clearly established under the writ of
certiorari,
the relief sought may be promptly granted, without re-hearing, under the writ of
mandamus.
Neither practice was followed here.
Accordingly, the alternative writ is dismissed, with costs.