Opinion

Eastern Boulevard Corp. v. Board of Commissioners of West New York

  • 124 N.J.L. 345
  • 11 A.2d 832
  • 1940 N.J. Sup. Ct. LEXIS 181
Court
Supreme Court of New Jersey
Filed
Mar 27, 1940
Status
Published
Author
Perskie
On the bench
Bodine, Perskie
Cited by
3 cases
Authority
More cited than 74.5%

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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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