text:
    JOANNA E. MURPHY, RELATOR, v. THE MAYOR AND ALDERMEN OF JERSEY CITY, FRANK HAGUE, MICHAEL I. FAGAN, WILLIAM B. QUINN, ARTHUR POTTERTON AND JOHN J. BEGGANS, BOARD OF COMMISSIONERS OF THE CITY OF JERSEY CITY, AND EDWARD SPOERER, SUPERINTENDENT OF BUILDINGS OF JERSEY CITY, RESPONDENTS.
    Submitted November 3, 1927
    Decided May 16, 1928.
    Before Justices Trefchard, Kalisch and Katzefbach.
    For the relator, L. Edward Herrman.

    For the respondents, Thomas J. Brogan and Charles Hershenstein.

   Per Curiam.

On June 28th, 1927, the relator (as stated in her brief) applied to the building inspector of the city of Jersey City for a permit for the erection of a one-story fireproof building, with partitions fox individual garages, on property owned by her in Jersey City, described as lots 13 and 14 in city block 1965, and known as No. 320 Arlington avenue.

It is stipulated that the property in question is zoned for residential purposes by an ordinance of Jersey City (page 25), wherein and whereby it appears a private garage is permitted if it is not more than twenty-five feet in width or more than twenty feet in depth and eleven feet in height, and erected on the rear land of the lot to store the pleasure automobile for the accommodation of the owner or tenant residing on the property. It, seems perfectly clear that the building proposed is in violation of the terms of the ordinance, notably in respect to the size of the building, which in the brief of the relator is stated to be forty feet in width and twenty feet in depth. The building inspector declined to issue a permit, whereupon the relator applied to the board of commissioners, and that board denied the application, after investigation and a finding that the proposed garages would increase the fire hazard, would be dangerous to children in the neighborhood, and detrimental to the health, welfare and public safety of the community at large.

Thereupon, in September, 1927, the relator obtained this rule to show cause why such permit should not be granted.

We think the writ must be denied.

The factual situation we think brings this case within our decision in Koplin v. Village of South Orange, 6 N. J. Mis. R. 489.

The result is that the rule to show cause in the present case will be discharged and the writ of mandamus denied accordingly.

Having reached the conclusion stated, we deem it important to all parties in interest to announce it promptly, and we do so in this somewhat informal manner in order to enable the relator to avail herself of the earliest possible opportunity for review, if review is desired. And if a review is desired the relator is hereby given permission to enter a rule allowing and directing the molding of the pleadings so as to permit of such review.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    MORRIS BOUER, RELATOR, v. MAYOR AND ALDERMEN OF JERSEY CITY, A MUNICIPAL CORPORATION, AND JOHN J. BEGGANS, DIRECTOR OF PUBLIC SAFETY, RESPONDENTS.
    Submitted February 16, 1928
    Decided May 18, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the relator, Henry J. Canby.

    For the respondents, Thomas J. Brogan and Charles Hershenstein.

   Per Curiam.

On July 29th, 1927, the relator applied to the department of public safety and the mayor and aldermen of Jersey City (page 7 state of case) for a permit for the erection of an ornamental drive-in gasoline station, designed for pumps and tanks for the storage of gasoline on land of which he is the equitable owner, being described as lots 1-a and 1-b in city block 1364, Jersey City. The application was heard and denied.

It is stipulated that the premises in question were zoned by the zoning ordinance of Jersey City “as a residential district,” and apparently the application was denied, because it was in conflict with the provisions of the ordinance, and also on account of increased fire hazard. Thereupon, on September 20th, 1927, the relator obtained this rule to show cause why a mandamus should not be issued commanding the granting of such permit.

The depositions disclose that there is already in the immediate neighborhood of the locus in quo underground tanks providing for the storage of six thousand five hundred gallons of gasoline.

We think that the permit cannot be granted. For all essential purposes the factual situation in this case brings it within the principle of our decision in Koplin v. Village of South Orange, 6 N. J. Mis. R. 489. The result is that the rule to show cause in the presént case will be discharged and the writ of mandamus denied accordingly.

Having reached the conclusion stated, we deem it important to all parties in interest to announce it promptly, and we do so in this somewhat informal manner in order to enable the relator to avail himself of the earliest possible opportunity for review, if a review is desired. And if a review is desired the relator is hereby given permission to enter a rule allowing and directing the molding of the pleadings so as to permit of such review.


text:
    FELDMAN & PIVNICK, INCORPORATED, A CORPORATION, PROSECUTOR, v. BOARD OF ADJUSTMENT OF THE CITY OF EAST ORANGE, DEFENDANT.
    Submitted February 16, 1928
    Decided May 18, 1928.

      Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutor, Benjamin Newman.

    For the defendant, Walter C. Ellis.

   Per Curiam.

On July 12th, 1927, the relator applied to the building inspector of the city of East Orange for a permit to erect a four-story brick apartment house arranged for the occupancy of twenty-nine families on a tract of land owned by the relator in that city, and known as No. 240 North Grove street.

That application was refused on the ground (which was true in point of fact) that the zoning ordinance of the city prohibited such a building in the zone in which the property in question was located, it being located in “medium volume residence district,” which prohibited the erection of an apartment house therein.

The prosecutor thereupon took an appeal to the board of adjustment, and that hoard, on September 7th, 1927, refused to make an exception to, or vary or modify the ordinance in favor of, the prosecutor as requested by the prosecutor, and affirmed the decision of the inspector of buildings.

Thereupon, on September 12th, 1927, the prosecutor obtained this writ to review the “decision” of the board.

We think the decision of the board cannot be disturbed.

The powers of the board of adjustment were defined by chapter 146 (Pamph. L. 1924, p. 324), and chapter 315 (Pamph. L. 1926, p. 526). Thereunder the board had power, among other things, to make special exceptions to, and in specific case make such variance from, the terms of the ordinance as would not be contrary to public interest, where, owing to special conditions, a literal enforcement would result in unnecessary hardship, and so that the spirit of the ordinance should be observed and substantial justice done; and further, to determine whether the ordinance, so far as it affected the use of the property in question, tended to promote the public morals, health, safety or welfare, and if it did not in such instance, might modify or vary any requirement thereof. The board was also given power to administer oaths and compel attendance of witnesses.

Such board, when it acts, acts judicially on a lawful ascertainment of facts. Bilt-Wel Co. v. Dowling, 5 N. J. Mis. R. 180.

The presumption is that the requirements and regulations of the ordinance are reasonable unless the contrary is shown (Burg v. Ackerman, 5 N. J. Mis. R. 96), and there is a further presumption that the action of the board was right. Silvester v. Princeton, 5 N. J. Adv. R. 1801. It follows, therefore, that the action of the board in refusing to vary or modify the terms of the ordinance will not be disturbed unless its action is shown by lawful evidence to be wrong. Oxford Construction Co. v. Orange, Ibid. 729.

Now, we find nothing in the record before us to justify us in disturbing the decision of the board of adjustment in the present case, which was, apparently, that the instant case was not one of unnecessary hardship, and that to interfere would be contrary to the public interest and welfare.

So far as the record shows, the prosecutor offered no evidence whatsoever having a tendency to show that the finding of the board of adjustment was wrong; and neither does anything in the stipulation as to facts overcome the presumption that the board’s action was right.

The writ will be dismissed, but without costs.


text:
    THE LYNCH REALTY COMPANY, RELATOR, v. CHARLES W. KAESER, BUILDING INSPECTOR OF THE TOWNSHIP OF HADDON, AND THE TOWNSHIP OF HADDON, RESPONDENTS.
    Submitted February 16, 1928
    Decided May 18, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the relator, Bleakly, Stockwell & Burling.

    For the respondents, Walter S. Keown.

   Per Curiam.

On September 6th, 1927, the relator applied to the building inspector of the township of Haddon for a permit for the erection of a two-story building containing two stores and apartments on property of the relator in the township of Haddon at the northeasterly corner of White Horse pike and Holly avenue. The building inspector denied the permit for the reasons that the building line ordinance of the township prohibited it. The relator thereupon, on October 27th, 1927, obtained this rule to show cause why a writ of mandamus should not issue commanding the building inspector to issue a permit to the relator for the building in question.

It appears that the land in question is part of a restricted tract, restricted by deed, requiring that no part of a building shall be nearer than twenty-five feet to the front street line of lots on the White Horse pike and fifteen feet from the property line of all other streets within that designated tract or zone. It further appears that the building line ordinance of the township which prohibited the building in question, so^ far as we are now concerned with it, adopts in part, at least, the restrictions laid down in the deeds, by incorporating these restrictions as part of the building ordinance of the township.

It appears that the building proposed by the relator violates the set-back provisions of that ordinance.

In passing it may be noticed that the relator took title with both actual and constructive notice of these restrictions imposed by deed. (

The question argued is whether or not this ordinance is within the police power.

We think that it is, and that the permit must be denied.

There is nothing in the facts of this case to distinguish it from the ease of Koplin v. Village of South Orange, 6 N. J. Mis. R. 489, and we think the principle announced in that case controls the present case.

The result is that the rule to show cause in the present case will be discharged and the writ of mandamus denied accordingly.

Having reached the conclusion stated, we deem it important to all parties in interest to announce it promptly, and we do so in this somewhat informal manner, in order to en-' able the relator to avail itself of the earliest possible opportunity for review, if a review is desired. And if a review is desired, the relator is hereby given permission to enter a rule allowing and directing the molding of the pleadings so as to permit of such review.


author: Lloyd, J.

text:
    ROSA D. HELDRICH, PETITIONER, v. AMERICAN INCUBATOR MANUFACTURING COMPANY, AND ROBERT C. NICHOLAS AND GLENN BOYCE, RECEIVERS OF THE AMERICAN INCUBATOR MANUFACTURING COMPANY, RESPONDENTS—NEW YORK INDEMNITY COMPANY, CARRIER.
    Argued May 1, 1928
    Decided May 16, 1928.
    Before Justices Kalisch and Lloyd.
    For the rule, Collins & Corbin.

      Contra, William N. Cooper.

   The opinion of the court was delivered by

Lloyd, J.

Rosa D. Heldrich obtained in the workmen’s compensation bureau an award against the receivers of the American Incubator Manufacturing Company for the death of her husband, Andrew Heldrich. This award was not appealed from, but was filed as a judgment in the Common Pleas Court of Middlesex county. This judgment was docketed in the Supreme Court, December 17th, 1927.

On December 31st following, default having been made in payment of the amounts called for in the award, an order was made by Mr. Justice Trenchard declaring the whole sum due and owing by the receivers and by its insurance carrier, and directing that an execution issue for the amount thereof. On April 11th, 1928, a rule was allowed by the same justice to show cause why the order made by him on December 31st, 1927, should not be vacated and set aside. It is this rule which is now before us.

The reasons urged for making the rule absolute are that the order complained of was made without notice; that subsequently to the compensation award the petitioner, as the executrix of Andrew Heldrich, received from the Long Island Railroad Company, in compromise settlement of an action brought by her to recover damages for the death of her husband, the sum of $15,000; that chapter 199 of the laws of 1915, under which the order was made, is unconstitutional, and that the order itself is a. proceeding without due process of law in violation of the constitutional rights of the receiver and the New York Indemnity Company, the employer’s insurance carrier.

None of these reasons are, in our judgment, adequate grounds for disturbing the order complained of. The compensation award by authority of sundry acts may lawfullly become a judgment of the Common Pleas Court, and this in turn may be docketed in the Supreme Court. Upon failure to comply with the original order for compensation the court may order that the entire amount of compensation shall become due immediately, and that, on proof of such failure, execution may issue for the entire amount of the award, and that supplementary proceedings in aid of execution may be resorted to upon the judgment so docketed and becoming due in whole, as in other cases. Pamph. L. 1915, ch. 199, p. 364.

The receivers, and, consequently, the insurance carrier, were in court by lawful process on the original award. They were obliged thereafter to take cognizance of the steps available to the petitioner by virtue of the various statutes, and, in the absence of statutory provision directing otherwise, no notice was required of the filing of the award in the Common Pleas Court, its docketing in the Supreme Court or the order declaring the whole amount due upon proper proofs of failure to comply with the award, and that execution issue thereon. These various steps were but lawful measures in aid of the primary judgment and its enforcement.

It is next contended that the sum obtained from the Long Island Bailroad Company by Mrs. Heldrich, executrix, extinguished the award. This contention we regard as wholly untenable. While the act cited in its third section provides that recovery for death or injury shall release the employer from the obligation under the award, such recovery does not automatically extinguish the award. It can only be availed of by the presentation of such recovery to the court having cognizance of the judgment in some legal proceedings, in which proceeding a judicial determination can be had as to the fact of such recovery, and if there has been such recovery the amount applicable to and available for the extinguishment of the award. As counter-claims held by individuals against each other do not automatically extinguish each other, but must be judicially determined and awarded, so we take it must the recovery as in the present instance be availed of in the same manner if it is to extinguish the award in the present case.

On March 17th, 1928, on the petition of the present applicant; a rule was allowed by the Chief Justice to show cause why the judgment obtained in the Supreme Court should not be canceled and satisfied of record. The purpose of this rule was to have a legal determination of the fact of recovery by Mrs. Heldrich as executrix against the Long Island Bail-road Company, and the extent, if any, of which this recovery may go toward the liquidation of the award in the present case. This under our view was a rational method of procedure under which the parties’ rights may be properly determined, and is so recognized by counsel for the insurance carrier.

The reasons urged on the present motion that the constitutional rights of the parties are invaded are, we think, unsound. The whole scheme of workmen’s compensation rests upon a contractual basis whereby employer and employe voluntarily enter into a relationship carrying with it certain rights and certain obligations. These rights and obligations are necessarily agreed to, in limine, when the relationship of master and servant first arises. It is quite clear to us, therefore, that in such situation the ultimate result reached in the present case is, in effect, but the carrying out of the rights which the employe and those accorded such rights in the act have acquired in the original employment as supplemented by the events subsequent thereto. The act, we think, does not contravene the provision of the the state constitution forbidding the passage of certain private and local laws.

The order of Mr. Justice Trenchard declaring the whole award due will not be disturbed, but upon proper application the execution issued thereon will be stayed until the disposition of the rule pending before the Chief Justice to determine the extent, if any, of which the judgment in this court should be reduced by virtue of the moneys received by Mrs. Heldrich as administratrix from the Long Island Bailroad Company, or the further order of the court.


text:
    NEWARK ATHLETIC CLUB, PROSECUTOR, v. BOARD OF ADJUSTMENT OF NEWARK, NEW JERSEY, AND SAYBROOK HOLDING COMPANY, DEFENDANTS.
    Submitted February 16, 1928
    Decided May 24, -1928.
    Before Justices Trencharb, Kalisch and Katzenbach.
    For the prosecutor, William Hamilton Osborne.

    For the defendants, Saul & Joseph H. Cohn.

   Per Curiam.

The Saybrook Holding Company, one of the defendants herein, applied to the building department of the city of Newark for a permit to erect a public garage, in dimensions ninety-seven feet by one hundred feet, on land owned by it at Nos. 13-19 Saybrook Place, Newark, New Jersey, the garage building to be one and a.half stories in height.

The building department of the city of Newark refused the application for the permit on the ground that the public garage building when built would be within two hundred feet of a church, and, hence, in violation of the terms of the city ordinance in that respect.

Thereupon, after such refusal, the Saybrook Holding Company appealed to the board of adjustment for a variation of the terms of the ordinance with which the proposed building was to be in conflict. Such board of adjustment reversed the action of the building department and granted the permit. Thereafter the Newark Athletic Club applied for a writ of certiorari to review the proceedings and decision of the board of adjustment. The result of that application was that this rule to show cause why a writ of certiorari should not issue was allowed.

The applicant for the writ contends, among other things, that the action of the board of adjustment was taken “without proofs;” and further, that the two-hundred-foot provision of the ordinance is binding, and effectively prohibits the erection of the garage in question.

Our examination of the matter results in the conclusion that the applicant has raised questions fairly debatable and is entitled to formally present them to the court for decision. The result is that the writ of certiorari will be awarded.


text:
    THE STATE, EX REL. JOSEPH LESCHINSKY AND STANISLAW KARPINSKY, RELATORS, v. FRANK I. ACKERMAN, SUPERVISOR OF BUILDINGS OF THE CITY OF PASSAIC, AND THE CITY OF PASSAIC, A MUNICIPAL CORPORATION, DEFENDANTS.
    Submitted February 16, 1928
    Decided May 24, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the relators, Ira C. Moore, Jr., Joseph H. Baker, Vincent J. Paterno and Whiting & Moore.

    For the defendants, Joseph J. Weinberger.

   Per Curiam.

The relators hold a rule to show cause, dated September 20th, 1927, why a writ of mandamus should not issue to the supervisor of buildings of the city of Passaic, and the city of Passaic commanding them to issue a permit to erect an apartment house building on land in the city of Passaic owned by the relators and known as No. 307 Gregory avenue.

It appears that the supervisor of buildings, on April 7th, 1927, refused to grant the permit on the ground (which was true in point of fact) that the site is in residence "B” district and is zoned against apartment houses of the type proposed.

It appears that the relators thereafter, on April 8th, 1927, filed notice of appeal with the board of adjustment. The board did not act until August 25th, 1927, and then "voted to approve that a permit be granted.” It further appears that on September 15th, 1927, the board of adjustment reopened their hearing on the application and reserved decision for two weeks, and the matter is still pending.

The defendants say that the board of adjustment had exhausted its jurisdiction when it failed to render a decision within sixty days after notice of appeal.

This point is well taken. The act of 1927 (chapter 203 of laws of 1927), which was, in effect, when this appeal was .taken, provides that if the board shall fail to decide the matter within sixty days after the date of notice of appeal, “it shall he considered that the hoard of adjustment decide that the zoning ordinance, which any appellant desires by his appeal to have modified or varied, tends to promote the public morals, health, safety or welfare.” Thorpe v. Corwin, 20 N. J. L. 316. It seems clear, therefore, that relators acquired no right to the permit by reason of their appeal to the board of adjustment.

But relators say that in any event they are entitled to mandamus,, apparently upon the notion that the zoning ordinance was not within the police powers of the state.

Upon this phase of the case we think the present case falls within our decision in Koplin v. Village of South Orange, 6 N. J. Mis. R. 489.

So, upon the whole case, we are constrained to think that the rule to show cause must be discharged and the writ of mandamus denied accordingly.

Having reached that conclusion, we deem it important to all parties in interest to announce it promptly, and we do so in this somewhat informal manner in order to enable the relators to avail themselves of the earliest opportunity for review if a review is desired. And if a review is desired, the relators are hereby given permission to enter a rule allowing and directing the molding of- the pleadings so as to permit of such review.


text:
    HENRY B. EWALD AND WILLIAM EWALD, PROSECUTORS, v. THE BOARD OF ADJUSTMENT OF THE BOROUGH OF LEONIA, NEW JERSEY, AND EDWARD ERB, BUILDING INSPECTOR OF THE BOROUGH OF LEONIA, DEFENDANTS.
    Submitted February 16, 1928
    Decided May 24, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutors, Maley & Maley.

    For the defendants, Jesse B. Leslie (Robert Carey, of counsel).
   Per Curiam.

On July 15th, 1927, the prosecutors of this writ applied to the building inspector of the borough of Leonia for a permit for the erection of a building to contain eight stores at the southeast corner of Broad and Moore avenues in that borough. The building inspector denied such permit on the ground (which was true in fact) that the property in question was zoned by the zoning ordinance of the borough for one and two-family dwellings.

Thereafter, on July 19th, 1927, an appeal was taken by the prosecutors for the refusal of the building inspector to grant the permit to the board of adjustment, which board, after hearing “argument on behalf of the prosecutors,” and some expressions against granting the permit on the part of citizens, “sustained” the refusal of the building inspector and denied the permit, and refused to make an exception to the ordinance, on the ground that to grant it would be detrimental to public welfare, and that the strict enforcement of the ordinance would not be a hardship.

Thereupon, on September 13th, 1927, the prosecutors obtained this writ to review the judgment of the board.

We think the judgment of the board cannot be disturbed in view of this record.

The powers of the board of adjustment were defined by chapter 146 (Pamph. L. 1924, p. 324), and chapter 315 (Pamph. L. 1926, p. 526). Thereunder the board had power, among other things, to make special exceptions to, and in specific cases make such variance from, the terms of the ordinance as would not be contrary to public interest, where, owing to special conditions, a literal enforcement would result in unnecessary hardship, and so that the spirit of the ordinance should be observed and substantial justice done; and further, to determine whether the ordinance, so far as it affected the use of the property in question, tended to promote the public morals, health, safety or welfare, and if it did not, in such instance, might modify or vary any requirement thereof. The board was also given power to administer oaths and compel the attendance of witnesses.

Such board, when it acts, acts judicially on a lawful ascertainment of facts. Bilt-Wel Co. v. Dowling, 5 N. J. Mis. R. 180.

The presumption is that the requirements and regulations of the ordinance are reasonable unless the contrary is shown (Burg v. Ackerman, 5 N. J. Mis. R. 96), and there is a further presumption that the action of the board was right. Silvester v. Princeton, 5 N. J. Adv. R. 1801. It follows, therefore, that the action of the board in refusing to vary or modify the terms of the ordinance will not be disturbed unless its action is shown by lawful evidence to be wrong. Oxford Construction Co. v. Orange, 5 Id. 729.

Now, we find nothing in the record before us to justify us in disturbing that determination. So far as the record shows, the prosecutors offered no evidence whatsoever having a tendency to show that the finding of the board of adjustment was wrong; and neither does anything in the stipulation as to facts overcome the presumption that the board’s action was right.

The-writ will be dismissed, but without costs.


text:
    SWIFT & COMPANY, A CORPORATION OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE, v. MAX M. WALSTEIN, DEFENDANT-APPELLANT.
    Submitted January 27, 1928
    Decided May 28, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the plaintiff-appellee, Edwards & Smith.

    For the defendant-appellant, Maurice C. Brigadier.

   Per Curiam.

This is a replevin by a chattel mortgagee against the grantee of a mortgagor. .There is no question but that the chattel mortgage was promptly recorded. The objections to a recovery as stated relate to the contents of the chattel mortgage itself, and are, first, that the affidavit of consideration refers to copies of an agreement and note annexed to the mortgage which are incomplete because of the omission of signatures of the parties concerned; and secondly, that the chattel mortgage was proved by a subscribing witness, and that the certificate of proof does not state that the officer taking it was satisfied with the sufficiency of such proof. The judge of the District Court held both these defenses to be without merit.

The affidavit states that the consideration of the mortgage “is the sum of $500 advanced by Swift & Company to the mortgagor under the terms of an agreement bearing even date with said mortgage [copy of which is annexed to said mortgage and made, a part thereof, and is to be read in connection with this affidavit], and evidenced thereby and also by a promissory note made by the mortgagor to the mortgagee of even date herewith [a copy of which is annexed to said mortgage and made a part thereof, and is to be read in connection with this affidavit] and such further sum of money,” &e. An examination of the copy of the agreement shows that it has blank lines for signatures and does not show any signatures, and a similar examination of the copy of the note shows no signature.

We agree with the trial judge that the statement in the affidavit that there was an agreement and a note is sufficient to indicate that both papers were completed by signature. After all, the important thing is the terms of the note and of the agreement. The situation seems to meet the test laid down by Yice-Chancellor Emery in Bollschweiler v. Packer House Co., 83 N. J. Eq. 469, 470, cited in the brief for the appellant.

With respect to the certificate of proof, it is in the form indicated in the statute and in use for very many years. It reads as follows:

“Be it remembered, that on this 19th day of August, in the year of our Lord one thousand nine hundred and twenty-six, before me, a notary public, personally came Lloyd Wean, of full age, who being by me duly sworn on his oath, said that he saw the within-named Martin Novinski, party of the first part, sign, seal and deliver the within instrument as his voluntary act and deed, and that deponent at the same time signed the same as subscribing witness.
Subscribed and sworn to before me, this 19th day of August, 1926.
Lloyd Wean.
Michael G-kuben,
Notary Public of N. J.”

This form will be found as the accredited form in Griff. L. R., p. 1210, published about 1821, and has been in constant use from that day to this. The matter fias just been considered by the Court of Errors and Appeals in Rosenson v. Bochenek at the February term, 1928, and held to be legally sufficient in that case.

We find no error in the judgment below, and it will, accordingly, be affirmed.


text:
    FRANK MANGIELLO, RELATOR, v. MAYOR AND ALDERMEN OF JERSEY CITY ET AL., RESPONDENTS.
    Argued May 2, 1928
    Decided May 29, 1928.
    Before G-ummeee, Chief Justice, and Justices Parker and Katzenbach.
    Eor the relator, Marie A. Sullivan.

    Eor the respondents, Thomas J. Brogan.

   Per Curiam.

This case is before us upon an alternative writ of mandamus. The writ is directed to the mayor and aldermen of Jersey City, a municipal corporation, and the superintendent of buildings. The relator entered into an agreement for the purchase of premises in Jersey City known as Fos. 20-22 Bostwick avenue. The land has a frontage of seventy-five feet on said avenue and a depth of one hundred feet. The lot is enclosed by a high picket fence with a gateway therein of sufficient width to permit auto trucks to pass through. On the easterly side of the lot facing west is erected a one-story frame building. The walls are of board sheathing covered on the outside with galvanized iron pressed to resemble brick. The relator is engaged in the ice business. He purchased the premises to store ice temporarily for delivery to his customers in Jersey City. The relator’s plan was to store cakes of ice in the building during the late afternoon of one day and remove the same in the morning of the following day. To equip the building for such a use required the closing of the windows and the lining of the interior with three inches of cork. The relator applied for a permit to make these alterations. Under an ordinance of Jersey City, passed June 3d, 1924, entitled “An ordinance to regulate the erection and alteration of all buildings and structures to be used, or designed to be used, for any purpose other than as residence or for living apartments,” permission for an alteration must be obtained from the board of commissioners. This permission the board in the instant case refused to grant. No zoning question is involved. The grounds of refusal were that the sealing of the windows, lining the building with cork and using it for the temporary storage of ice, would be detrimental to the health of the people in the community, the safety of children and pedestrians due to the passing of trucks over the sidewalk to and from the enclosure, and the trucks would create a nuisance by disturbing the neighborhood in the early morning hours. In the depositions taken under the writ, the respondents also claim that a fire hazard would be created “by the accumulation of trucks in the delivery of ice due to the usual carelessness of people running automobiles, backing up and going ahead.”

An examination of the grounds advanced by the city to sustain its refusal to grant the permit for alterations leads us to the conclusion that they are insufficient and unsupported by the evidence, and that the action of the board of commissioners in denying the permit is unreasonable. There is no evidence that the use of the building for the storage of ice would be detrimental to health. The safety of children and pedestrians by the passing over the sidewalks of trucks to and from the enclosure in which the building is located would be no more imperiled by the use of the building for the storage of ice than for any other purpose to which it might be put which would require trucks to pass to and from the enclosure over the sidewalk. If this were a sufficient ground to refuse a building permit for alterations it would apply equally to any kind of business conducted in a yard to which entrance for trucks would have to be obtained by passing over a sidewalk. Such a prohibition would render unavailable many properties adopted for business purposes. It is unreasonable. The operation of trucks in the morning hours may create a noise disquieting to some persons. This is a matter which is unavoidable in cities. The baker, milk vendor, newspaper carrier and iceman for the convenience of their patrons must make their deliveries in the early morning hours. To make deliveries trucks or other conveyances must be loaded and used. No trade can in such matters be discriminated against. The iceman is entitled to as much consideration as the baker or milkman. The same argument applies with equal force to the question of fire hazard. As a general proposition the assembling and improper handling of motor vehicles may enhance the possibility of fire. But this method of transportation is recognized. It is useful. It may be considered necessary to employ it in the present day competition in business. To refuse to permit a building to be used for purposes which require the use of trucks because the fire hazard may per chance be increased by such use is unreasonable and a prohibition against the use of property which is unwarranted. In many places in our cities trucks and automobiles are congre-' gated in public places in large numbers.' The hazard of fire may thereby be increased. Successful attempts to prevent in this regard increased fire hazard by prohibiting the conduct of business where motor vehicles are required or the assembling of motor vehicles in public garages or upon the streets of a city would soon turn our cities into deserted villages and seriously impair the values of city property. We consider the position of the city in the present case unreasonable and award a peremptory writ of mandamus for the issue of the permit for alterations to the building applied for by the relator.


text:
    GRAZIELLA DEL CAMPO, PROSECUTOR, v. BOARD OF ADJUSTMENT OF THE CITY OF NEWARK AND RUSSELL B. RANKIN, SECRETARY OF SAID BOARD, RESPONDENTS.
    Decided June 6, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutor, Anthony R. Finelli.

    For the respondents, Jerome T. Congleton.

   Per Curiam.

The prosecutor is the owner of a tract of land located in Hunterdon street, in the city of Newark. On June 11th, 1927, he applied to the superintendent of buildings of the city of Newark for a permit for the conversion of a two-family dwelling house, known as 206 Hunterdon street, into a combination office, store and dwelling, and submitted to that official plans and specifications therefor.

On June 22d, 1927, the superintendent refused to issue the permit upon the ground that the proposed alteration would allow the erection of a store in violation of article 1, section 2 of the zoning ordinance of the city of Newark, adopted December 31st, 1919, which classified the district in which the prosecutor’s lot is located as a residential district, for which building permits could only be issued for certain classes of buildings, and that the alterations proposed to be made by the prosecutor did not fall within any of these classifications.

The prosecutor appealed to the board of adjustment, which board affirmed the action of the building superintendent.. No testimony was taken.

It is conceded that the proposed alterations are in violation of the zoning ordinance.

We see nothing in this case which distinguishes it from the case of Feldman & Pivnick, Incorporated, v. Board of Adjustment of the City of East Orange, and, therefore, the decision in'that case controls here.

The writ is dismissed, but without costs.


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    J. H. REALTY COMPANY, PROSECUTOR, v. BOARD OF ADJUSTMENT OF THE CITY OF EAST ORANGE, NEW JERSEY, AND JOHN SCOTT, SUPERINTENDENT OF BUILDINGS OF THE CITY OF EAST ORANGE, RESPONDENTS.
    Decided June 6, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutor, M. Harold Higgins.

    For the respondents, Walter C. Ellis.

   Per Curiam.

The facts of this case are as follows: The prosecutor was the owner of certain land in East Orange, situate in a district designated under the zoning ordinance of that city as "small volume residence district.” He caused plans and specifications to be prepared for the erection of a two-story brick building, to be occupied by five stores and nine apartments. An application was made in due form to the respondent John Scott, superintendent of buildings of the city of East Orange, who declined to issue a permit because of the provision of section 3 of the zoning ordinance of East Orange.

Section 3 of the ordinance, inter alia, provides, among other things, under the caption, “small volume residencé district” in subdivision A, as follows: “No buildings or premises within any district shown as a small volume residence district on the use and volume district map shall be used for other than one or more of the following specified uses: 1. Dwellings for one family only.”

The prosecutor appealed to the board of adjustment, which board affirmed the action of the building inspector in refusing the permit.

We find nothing in the facts of this case which distinguish them from those facts which appeared in the case of Eeldman & Pivnick, Incorporated, v. Board of Adjustment of East Orange, decided at the present term of this court, and, therefore, the facts of the instant case do not call for the application of a different legal principle than that which - was held controlling in the case cited.

The writ is dismissed, but without costs.


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    JOHN ASTAPOFF AND STEPHEN KARINSKY, PROSECUTORS, v. FREDERICK BIGELOW, BUILDING INSPECTOR OF THE CITY OF NEWARK, AND BOARD OF ADJUSTMENT OF THE CITY OF NEWARK, AND THE CITY OF NEWARK, RESPONDENTS.
    Decided June 6, 1928.

      Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutors, William I. Greenbaum.

    For the respondents, Jerome T. Congleton.

   Per Curiam.

The prosecutors on June 23d, 1927, applied to Frederick Bigelow, building inspector of Newark, for a permit to erect a building containing two stores on premises known as Nos. 75-81 Varsity road, Newark, New Jersey.

On July 5th, 1927, the prosecutors applied to the building inspector for a permit to erect a two-story building containing stores on the first floor and apartments for residence on the second floor, on premises known as 76-80 Varsity road, in the city of Newark.

The agreed state of facts shows that the building inspector rejected the application because the zoning ordinance of the city of Newark prohibited the erection of a building of the type the prosecutors intended to erect, and, also, that the prosecutors appealed from the decision of the building inspector to the board of adjustment of Newark, on July 21st, 1927, which board affirmed the decision of the building inspector, upon the ground that the zoning ordinance prohibited the erection of the type of building intended to be erected by the prosecutors.

There was no testimony taken before the board of adjustment, the prosecutors relying solely on the ground that the ordinance in question is unconstitutional.

The facts of this case fall squarely within those facts decided in the case of Eeldman & Pivnick, Incorporated, v. Board of Adjustment of the City of East Orange, which decision is controlling here.

The writ is dismissed, but without costs.


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    BENBAK CONSTRUCTION COMPANY, PROSECUTOR, v. BOARD OF ADJUSTMENT OF THE CITY OF ORANGE ET AL., RESPONDENTS.
    Decided June 6, 1928.
    Before Justices Teenchaed, Kalisch and Katzenbaoh.
    For the prosecutor, Frank E. Bradner.

    For the respondents, Walter C. Ellis.

   Per Curiam.

The prosecutor, owner of a plot of ground fronting two hundred and two feet on Rhode Island avenue and extending from Freeman avenue to Grand avenue, with a depth of one hundred feet, in the city of East Orange, New Jersey, applied to John Scott, building inspector of that city, and requested the issuance of a permit for the erection of two houses of eleven families each, and one house of eight families on the said land.

The application was denied, and from this refusal of a permit the prosecutor appealed to the board of adjustment of the city of East Orange. The board gave notice of a hearing by advertising in a newspaper, and on the day fixed for the hearing the prosecutor appeared by counsel. No testimony was taken and the board of adjustment refused the permit.

It is conceded that the zoning ordinance of the city of Orange prescribed that no building or premises in any district shown as a “small volume residential district” shall be used for other than one or more of the following specified uses: “1. Dwellings for one family only,” &e.

The land owned by the prosecutor is located in the small volume residential district, and the proposed building which he intended to erect are designed for more than one family each, and, therefore, his application came directly within the inhibition of the zoning ordinance.

It is urged on behalf of the prosecutor that the board of adjustment should have determined and adjudicated that the zoning ordinance does not, in this case, tend to promote either the, public morals, health, safety or general welfare, and should have modified the requirements of the ordinance accordingly, and should have ordered the inspector of buildings to issue the permit.

This court in Eeldman & Pivnick, Incorporated, v. Board of Adjustment of the City of East Orange, speaking of the function of the board of adjustment, says: “Such board, when it acts, acts judicially on a lawful ascertainment of facts. Bilt-Wel. Co. v. Dowling, 5 N. J. Mis. R. 180.”

“The presumption is that the requirements and regulations of the ordinance are reasonable, unless the contrary is shown (Burg v. Ackerman, 5 N. J. Mis. R. 96), and there is a further presumption that the action of the board was right. Silvester v. Princeton, 5 N. J. Adv. R. 1801. It follows, therefore, that the action of the board in refusing to vary or modify the terms of the ordinance will not be disturbed, unless its action is shown by lawful evidence to be wrong. Oxford Construction Co. v. Orange, 5 Id. 729.”

It appears from the record before us that no testimony was presented to the board on behalf of the prosecutor tending to show that the action of the building inspector, in refusing a permit, was arbitrary or that the ordinance was unreasonable. The board, therefore, very properly refused the prosecutor’s application.

The writ is dismissed, but without costs.


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    ALEXANDER CALLANDRIELLO, RELATOR, v. JEFFERSON MILLER, BUILDING INSPECTOR OF THE TOWNSHIP OF HILLSIDE, RESPONDENTS.
    Decided June 6, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the relator, Harry E. Young.

    For the respondents, Whittemore & McLean.

   Per Curiam.

The relator made an application to the building inspector of the township of Hillside for a permit to erect and construct on certain property which the relator owned in that township, a two-story frame store and apartment building, the ground floor of which was to be used for three stores, and the upper floor to contain apartments, the application being accompanied by plans and specifications for the said building.

The relator’s application was refused by the inspector upon the ground that the zoning ordinance prohibits the erection of such a building as was contemplated and shown by the plans and specifications, and thereupon the relator appealed to the board of zoning adjustments of the township of Hillside for a permit to construct the said building, with the result that the board, having heard and considered the application, refused to issue a permit on the sole ground that the area was zoned against the erection of stores upon the premises.

The stipulation between counsel is further to the effect that the relator did not apply for or obtain a writ of certiorari to review the acts or proceedings of the zoning board, because the sole reason given by the building inspector for its refusal to grant a permit for the construction of the proposed building for a dwelling and stores was based upon the assertion that it would be in violation of the provisions of the zoning ordinance, and that was also the sole ground upon which the board of adjustment denied permission to the prosecutor to erect stores upon the premises in question.

We do not think the circumstances of the board of adjustment have simply affirmed the action of the building inspector in refusing a permit to erect the stores, upon no other ground than that the zoning ordinance forbade the erection of stores in the district where the property of the relator was located, furnishes a sufficient legal answer to the relator or for his failure to have the action of the board reviewed by a writ of certiorari.

But, even if we ignored the failure of the relator to take the required step to have the action of the board of adjustment set aside in order to give the relator a legal status to apply for a writ of mandamus, the facts of this case are analagous to those facts which appeared in the case of Rebecca Koplin v. The Tillage of South Orange et al., decided adversely to the relator at the present term of this court, and which case was before us on a rule to show cause why a mandamus should not issue, and the decision in that case being controlling here, leads to the result that the rule to show cause will be discharged, with leave given to the relator to enter a rule allowing and directing the molding of the pleadings for the purpose of a review.


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    PARAMOUNT REALTY AND CONSTRUCTION COMPANY, INCORPORATED, PROSECUTOR, v. GEORGE F. SCHMITT, SUPERINTENDENT OF BUILDINGS OF THE TOWN OF IRVINGTON; THE BOARD OF ADJUSTMENT OF THE TOWN OF IRVINGTON, AND THE TOWN OF IRVINGTON, AND JOSEPH DIEBOLD, SUPERINTENDENT OF BUILDINGS OF IRVINGTON, RESPONDENTS.
    Decided June 6, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutor, Cohen & Klein.

    For the respondents, Charles H. Stewart.

   Per Curiam.

The facts as stipulated between the parties in this cause disclose that the prosecutor is the owner of premises located on the northwest corner of Clinton avenue and Sanford avenue, in the town of Irvington; that the prosecutor applied for a permit from the building inspector of the town to erect a two-story brick building, containing on the ground floor eight commercial stores, and on the second floor five living apartments; that the prosecutor has complied in all Tespects with the requirements for making an application for a permit; that the prosecutor’s application is for the erection of a building to contain commercial stores in' a district where such use is not allowed by the zoning ordinance of the town of Irvington. The application for the permit was in consequence of the said zoning ordinance refused.

The prosecutor thereupon appealed to the board of adjustment from the refusal of the building inspector to grant the application for a permit, which board, after a hearing, denied the prosecutor’s application.

Erom the stipulated facts in the case it appeared that the prosecutor’s property is located in a residential zoning district; that the character of the neighborhood as established is residential, and houses therein and in the immediate vicinity are all one-family houses, costing $10,000 and upwards ; that there is no local demand for stores in the neighborhood; that the intersection of Clinton avenue and Sanford avenue is already exceedingly dangerous, and the erection of stores will have a tendency to increase the hazards at that point, &c. There was also a protest signed by ninety per cent, of the property owners against the granting of the permit for the erection of stores.

We think the facts and circumstances which were before the board of adjustment had a tendency to establish that it was against the general welfare of the public to have stores erected on the premises in question.

It being a question of fact for the board of adjustment to determine whether or not the erection of stores in the neighborhood as contemplated was or was not against the general welfare of the public, its finding that it was against the general welfare, supported as it is by testimony, will not be disturbed.

The writ is dismissed, but without costs.


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    SAMUEL LEVINE, PROSECUTOR, v. BOARD OF ADJUSTMENT OF THE BOROUGH OF RUTHERFORD, RESPONDENT.
    Decided June 6, 1928.

      Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutor, William H. K. Davey.

    For the respondent, Guy L. Fake.

   Per Curiam.

The prosecutor is the owner of a tract of land situated on the northwest corner of Montross and West Newell avenues, in the borough of Eutherford.

On June 19th, 1926, he applied to the building inspector of the borough for a permit to erect a building forty-six by fifty feet on the premises in question, to house three stores facing Montross avenue, accompanying such application with plans and specifications for the proposed building, and which plans and specifications were filed with the building inspector.

The permit was refused on the ground that the lot in question was in a residence number 1 district, as shown in the zoning ordinance and map of the said borough.

Erom the refusal of the building inspector to grant a permit an appeal was taken to the board of adjustment of the borough. Several hearings were had by the board, and on July 11th, 1921', the board rendered its decision dismissing the appeal.

There is no dispute that the character of the building and the purpose for which it was to be used was forbidden by the zoning ordinance.

Under the amendment of 1926 (Pamph. L. 1926, p. 526) the board of adjustment is made a judicial body, invested with power to determine as a question of fact whether a proposed building, not complying with the provisions of the local zoning ordinance, would constitute a menace to the public health, public safety, public morals and general welfare.

The board found on the evidence taken in this case “that the zoning ordinance of the borough of Eutherford, restricting the premises in question against the erection of a store building thereon, tends to promote the public morals, health, safety and welfare of the community, and is a reasonable exercise of the police power; that the erection of such a store building on the site in question would be a public menace, amounting to a nuisance, and tends to injure the public health by interfering with the peace and quiet of the neighborhood; that the erection of such stores would result in the congregation -of vehicles increasing congestion and noise, and render the streets in the immediate neighborhood dangerous to the residents and their children, thus injuring the public health and safety; furthermore, the fire hazard would be increased by the accumulation of rubbish and inflammable materials common to all stores; that-the neighborhood in question has been built up and maintained as a residential section by the surrounding property owners thus promoting their own general welfare, and the erection of stores on the site under consideration would be a detriment to surrounding property for residential purposes and destructive of the general welfare.”

There was proof that four hundred feet from the premises of the prosecutor, xxpon which the proposed building was to be erected, stood the Lincoln school, which is atteixded by children ranging from four to ten or thirteen years of age. There is also proof that there is a school on the next block * * * Montross avenue. There was testimony to the effect that the erection of the building with the stores would create a blighted area, ixx that it would depreciate the character of the locality for residential purposes.

There was also testimony relating to the effect that the erection of stores would have upoix the peace and quiet of the neighborhood, saixitary conditions and fire hazard.

The legislature having invested the board of adjustment to deterixxine as a question of fact whether a proposed building, not complying with the provisions of the local zonixig ordinaixce, would consitute a menace to the public health, public safety, pxxblic morals and general welfare, and as there may be a reasonable difference of opinion as to what the conditions may be for or against the general welfare, if there is any fact which tends to support the finding of the board, its finding will not be disturbed.

We think there is testimony in the case which tends to support the finding that the erection of the stores would be against the general welfare of the public.

The writ is dismissed, but without costs.


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    PHILIP BORN, PROSECUTOR, v. BOARD OF ADJUSTMENT OF THE CITY OF PATERSON, RESPONDENT.
    Decided June 8, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutor, Stein & Stein.

    For the respondent, Benjamin J. Spitz.

   Per Curiam.

On May 17th, 1927, the prosecutor was the owner of a tract of land in the city of Paterson, seventy-five feet of which fronted on Eleventh avenue, and a depth of one hundred feet, to East Twenty-fourth street, on which the depth fronted, and on that date applied to the building inspector of the city of Paterson to grant him a permit to erect five stores and two dwellings upon the said land, the building to consist of two stories, which permit was refused by the building inspector on the ground that the land in question was zoned in a district which prohibited the erection of buildings of the character applied for.

Subsequently, the prosecutor appealed to the board of adjustment for the purpose of changing the zone, and notice was given to the public in due form for a hearing to be had on the application.

On September 20th, 1927, the board of adjustment of Paterson held a public hearing on prosecutor’s application, and denied the same without taking any testimony or swearing any witness.

As was said by this court in Feldman & Pivnick, Incorporated v. Board of Adjustment of East Orange, 6 N. J. Mis. R. 520: “The presumption is that the requirements and regulations of the ordinance are reasonable unless the contrary is shown [Burg v. Ackerman, 5 N. J. Mis. R. 96], and there is further presumption that the action of the board was right. Silvester v. Princeton, 5 N. J. Adv. R. 1801. It follows, therefore, that the action of the board in refusing to vary or modify the terms of the ordinance will not be disturbed unless its action is shown by law evidence to be wrong. Oxford Construction Co. v. Orange, 5 Id. 729.”

As nothing was presented by the prosecutor to that effect, the writ will be dismissed, but without costs.


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    CONCORD DEVELOPMENT COMPANY, INCORPORATED, PROSECUTOR, v. THOMAS J. DOWLING, INSPECTOR OF BUILDINGS OF THE CITY OF ORANGE, NEW JERSEY, AND BOARD OF ADJUSTMENT OF ORANGE, NEW JERSEY, AND THE CITY OF ORANGE, NEW JERSEY, RESPONDENTS.
    Decided June 8, 1928.

      Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutor, William Tyacke.

    For the respondents, William A. Calhoun.

   Per Curiam.

The prosecutor is the owner of certain land situate at the northeast corner of Lincoln avenue and Berwick street, Orange, New Jersey. He applied to the building inspector of that city for a permit to build a four-story apartment house on the land in question. A permit was refused on the ground that the location of the land was in residence “A” zone. Application was then made to the board of adjustment for a modification of the provisions of the building zone ordinance, so as to permit the erection of the apartment house on the said land. Notice of the application having been given and a hearing being had thereon, August 25th, 1927, the application was denied on the grounds that “the structure would be only a short distance from Tremont school on Lincoln avenue where tuition in said school is confined to the lower grades, being largely attended by small children whose safety might be endangered by automobile traffic and parking and because proposed building would lack light and air space, occupying the entire width of lot and setting back but ten feet from Lincoln avenue and being placed but seven feet from the rear line of property, in the judgment of this board, the lot being forty feet in width and one hundred and twenty-five feet in depth, is too small for the erection of a building to house twenty-four families.

On the hearing the only witness sworn on behalf of the prosecutor was Erwin Gerber, an architect, who had prepared the plans for the proposed building, and he, upon being asked by counsel of prosecutor if the erection of the building would involve the welfare, health and safety of the locality, answered “No.” According to the record no' other testimony was offered or given.

As has been repeatedly stated in like cases which have come before this court for adjudication, we again reiterate that the board of adjustment in deciding such applications sits and acts in a judicial capacity, and its determination on questions of fact is a finality unless it clearly appears that its action has been arbitrary.

It is to be observed that the answer of the prosecutor’s witness was a general one, and was a mere conclusion based upon undisclosed facts. It was simply an opinion, and had no probative value, since there was no basis laid upon which an opinion could be properly predicated.

We have frequently said that the burden of establishing that a restrictive ordinance is unreasonable is upon the party assailing the validity of the ordinance, and as there were no facts before the board indicating in what respect the ordinance was unreasonable, there ivas no other course for the board to pursue than to deny the modification of the ordinance.

The writ, therefore, is dismissed, but without costs.


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    BARNEY APTER AND ELITE M. APTER, PARTNERS, TRADING AS PHILIP APTER & SONS, PROSECUTORS, v. THE CITY OF NEWARK, RESPONDENT.
    Decided June 8, 1928.

      Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutors, Kraemer & Siegler.

    For the respondent, Jerome T. Congleton.

   Per Curiam.

The prosecutors are the owners of premises designated as No. 16 Stratford Place, in the city of Newark. On August 29th, 1927, they applied to the building inspector of Newark for a permit to alter the first floor of the building for the purpose of changing the same into funeral parlors to be used in connection with the undertaking business which the prosecutors desired to carry on. On August 31st, 1927, the application was rejected. On September 1st, 1927, an appeal was taken from the decision of the superintendent of buildings and a public hearing was held by the board of adjustment on the appeal, and the board in its turn refused to grant the prosecutors’ application, whereupon the prosecutors desisted from making the alterations intended, but fitted up the premises for a funeral parlor and began carrying on the undertaking business.

On the 28th of October, 1927, a funeral was conducted from the premises in connection with and as a part of the undertaking business. Complaint was made against the prosecutors, separately, for the violation of article 1, section 2 of the zoning ordinance, because of the carrying on of the said business on the said premises.

At the trial counsel of the prosecutors moved to dismiss the complaint on the following grounds: (1) That the ordinance was void and unconstitutional because it prohibited the carrying on of the business in a residence zone, and (2) That the “complaint was void” because there was no allegation that No. 16 Stratford Place was within a residence district.

The trial judge refused to dismiss the complaint ordered on the trial, found the prosecutors guilty and fined them $25, which judgment is now before us for review on writ of certiorari.

It appears from the record that the proceedings against the prosecutors were commenced against each, individually, by complaint and summons for violation of section 2 of article 1 of an ordinance entitled “An ordinance regulating and restricting the location of trades and industries and the location of buildings designed for specified uses, and regulating and limiting the heighth and bulk of buildings hereafter erected, and regulating and determining the area of yards, courts and other open spaces surrounding buildings and establishing the boundaries of districts for the said purposes and providing penalties for the violating of its provisions,” approved December 31st, 1919, and the supplements and amendments thereof.

Subsequently, these two actions wrere consolidated by consent of counsel and of the court, so as to be considered as having been instituted by summons and complaint against both prosecutors jointly, since they carried on the undertaking business as partners.

It appears from the complaint that, after setting forth the title of the ordinance, it charges that the posecutors “did use the buildings and premises known as No. 16 Stratford Place in said city, for carrying on an undertaking business, and did conduct on said premises, on Friday, October 28th, 1927, a funeral in conjunction with said undertaking business in accordance with an advertisement published in the Newark Evening News on October 27th, 1927, and contrary to the provisions of said section.”

Deferring to section 2 of the ordinance, we find that it inter alia provides, under the caption “residence district: In a residence district no building or premises shall be used and no building shall be erected which is arranged, intended or designed to be used, except for one or more of the following specified uses — (1) Dwellings or tenements, including the office of a physician, surgeon, &c.,” (and then follows a list of various other kinds of vocations or character of buildings which might be erected), none of which includes the privilege of carrying on an undertaking business, or in express terms excludes it.

We do not deem it necessary to pass upon the constitutionality or reasonableness of the ordinance in question, since it is clear to us that the complaint made is fatally defective in that it does not allege that the business carried on at No. 16 Stratford Place is in a residence district, and, therefore, the motion of the prosecutors to dismiss the complaint should have prevailed.

Furthermore, the record of conviction does not show a violation of section 2, article 1, of the ordinance by the prosecutor, for it simply alleges “that the defendants were convicted of having violated said section of said ordinance in this, that they did use the building and premises known as No. 16 Stratford Place in said city, on October 28th, 1927, a. d., for carrying on an undertaking business, and did conduct on said premises on Friday, October 28th, 1927, a funeral in conjunction with said undertaking business, contrary to the provisions of said section, “without further alleging that the said premises on which their business was conducted were within the area of a residence district.

The violation aimed at is the carrying on of a business in a residential district, and this proceeding being summary and of a penal nature, all the acts necessary to constitute a violation of the ordinance should be stated, for the court cannot properly take judicial notice that the place where the act complained is charged to have been done took place in a residence or in a business district. The character of the place is an essential fact to be alleged in the complaint, and to be set forth in the conviction. And this does not appear.

The conviction will be set aside, with costs.


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    EDWIN S. HALL, RELATOR, v. MAYOR AND ALDERMEN OF JERSEY CITY, FRANK HAGUE, MICHAEL I. FAGAN, WILLIAM B. QUINN, JOHN BEGGANS AND JOHN SAUL, MEMBERS OF THE BOARD OF COMMISSIONERS OF JERSEY CITY, RESPONDENTS.
    Decided June 8, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the relator, John Milton.

    For the respondents, Thomas J. Brogan.

   Per Curiam.

The relator obtained from this court a rule to show cause why the respondents should not issue to him a permit to erect a gasoline station upon his premises in the city of Jersey City.

An application for a permit was first made, as is required by the ordinance of Jersey City, to the respondents, for the erection of the gasoline station.

The respondents gave notice of and held a public hearing, at which hearing adjacent property owners, by counsel, objected to the proposed service station on the ground that the street was one of Jersey City’s main arteries; that it would be dangerous to pedestrians to have automobiles crossing the sidewalks; that schools were located in the vicinity; that traffic would be retarded, and, therefore, the board of commissioners refused to grant the permit applied for. There■upon an application was made to this court for a rule to show cause why a mandamus should not issue directing the respondents to issue a permit to the relator for the purpose specified in his application. Leave was given to either party to take depositions to be used on the hearing of the rule to show cause.

It is a matter of common observance that the crossing of sidewalks by motor cars for the purpose of being served by gasoline stations, or for any other purpose is another added danger to the pedestrian, who is entitled to the free use of the public sidewalk.

We think this circumstance alone, appearing, was sufficient by itself to warrant the refusal of the permit applied for. See Silvester v. Mayor and Common Council of Borough of Princeton, 5 N. J. Adv. R. 1801.

Erom the testimony taken before the Supreme Court commissioner and used upon the rule to show cause, it appears that for the purpose of erecting the gasoline service station, and the use to which it was to be put * * * it was proposed to install four underground tanks having a capacity of twenty barrels each for the reception of gasoline.

There was testimony that this amount of storage of gasoline would increase the fire hazard, in that immediately surrounding the proposed service station there are a great num-' ber of tenement houses and factories.

We have, therefore, reached the conclusion that the rule to show cause should be discharged.

If a review is desired the relator is hereby given permission to enter a rule allowing and directing the molding of the pleadings for the purpose of such review.


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    ALFRED EHRHARDT, PROSECUTOR, v. BOARD OF ADJUSTMENT OF THE CITY OF PASSAIC, FRANK I. ACKERMAN, BUILDING SUPERVISOR, AND PASSAIC SECURITIES COMPANY, INCORPORATED, RESPONDENTS.
    Decided June 9, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutor, Frederick S. Ranzenhofer.

    For the respondent Passaic Securities Company, Edward F. Merrey.

   Per Curiam.

This matter is before us on a writ of certiorari to review the judicial action of the board of adjustment of the city of Passaic in granting three permits' to the Passaic Securities Company for the erection of three apartment houses on premises Nos. 24^50 Summer street, in the city of Passaic.

On September 20th, 1927, the Passaic Securities Company made an application, in writing, to the supervisor of buildings of the city of Passaic for three permits to erect three three-story apartment houses on a plot of ground on the northerly side of Summer street, approximately three hundred and fifty feet front by one hundred and eighty-seven and one-half feet deep. The three houses were to be occupied by ninety-nine families.

The building supervisor refused to grant the permits for the erection of the said houses, and from this refusal the Passaic Securities Company took an appeal to the board of adjustment of the city of Passaic, which special tribunal, after a consideration of the testimony taken at the hearing before it, granted the permits applied for.

There is no merit in the contention that the board lost jurisdiction to act in any manner by reason of its alleged failure to determine the matter before it within sixty days.

According to the record, application for the permits was made to the supervisor of buildings on the 20th day of September, 1927, and refused by him on that date. An appeal was taken on the same day to the board of adjustment and the appeal was determined by that board on the 27th of October, 1927.

These facts bring the determination of the board of appeal within sixty days from the time of giving of the notice of appeal.

But even if sixty days had gone by after notice of appeal was given and taken, the board would not thereby have been shorn of its jurisdiction to determine the matter, for it is quite obvious that the provision of the statute was for the benefit of an applicant, in order to secure a speedy decision on his or its appeal, and in the instant case the applicant is not objecting.

As has been pointed out the board of adjustment, on October 27th, 1927, determined the appeal taken by the Passaic Securities Company, and sustained it in the following terms: “It is further resolved that the appeal of this applicant be approved, as it is the opinion of the members of the board of adjustment that the erection of apartment houses as proposed by applicant would not constitute a menace to the public health, safety, morals and general welfare of the neighborhood in which it is proposed to erect these apartment houses.”

The action of the board of adjustment is next assailed upon the ground that its determination did not come within the scope of chapter 315, Pamph. L. 1926.

This objection is without legal force.

The act referred to expressly provides that the board of adjustment may modify or vary any requirement of said ordinance so far as it affects the user of the property in relation to which the appeal is taken.

This determination of the board clearly does.

We have considered the other reasons advanced in the prosecutor’s brief for setting aside the determination of the board and find them to be without substance.

The writ is dismissed, with costs.


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    ISADORE J. KOOGAN, PROSECUTOR, v. BOARD OF ADJUSTMENT OF THE CITY OF PATERSON, RESPONDENT.
    Decided June 9, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutor, Stein & Stein.

    For the respondent, Benjamin J. Spitz.

   Per Curiam.

In this case an application was made by the prosecutor to the building inspector of the city of Paterson for a permit to erect a one-story show room1 and service station upon the lands of the prosecutors, located in a zoning district in the city of Paterson, designated as “B” residence zone.

The permit was refused upon the ground that the premises upon which it was proposed to erect the show room and service station were located in a zoning district which forbade the erection of such class of buildings.

An appeal was taken to the board of adjustment which was requested to change the said zone to business-industrial zone, and the board having considered the application, but without taking testimony or swearing witnesses, denied an appeal and confirmed the action of the building inspector.

We think the facts of this case fall within the legal rule which is stated in the opinion filed in Born v. Board of Adjustment of the City of Paterson, ante, p. 551, and for the reasons stated, which are controlling here, the writ is dismissed, but without costs.


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    PAUL MARKOWITZ AND DAVID KRUGMAN, PROSECUTORS, v. JOHN QUIGLEY, INSPECTOR OF BUILDINGS OF THE CITY OF PATERSON, THE BOARD OF ADJUSTMENT OF THE CITY OF PATERSON, AND THE CITY OF PATERSON, RESPONDENTS.
    Decided June 9, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutors, Peter Cohn.

    For the respondents, Charles H. Roemer.

   Per Curiam.

The prosecutors proposed to erect a building to house fifteen families on premises owned by the prosecutors, known and designated as Nos. 351-253 Eifteenth avenue, located in the city of Paterson. The prosecutors caused proper plans and specifications to be prepared for said building, which were duly approved by the state tenement house commission, and which were filed on January 3d, 1927, with the building inspector of the city of Paterson, to whom they applied for a permit for the erection of the said building.

The building inspector refused to issue a permit on the ground that the building was designed to be used for a tenement house to be located in a residential zone, contrary to the provisions of an ordinance of the city of Paterson entitled “An ordinance establishing building districts, providing regulations and restrictions for the same and providing penalties for the violation of such ordinance,” adopted November 29th, 1921.

An appeal was taken by the prosecutors to the board of adjustment of the city of Paterson. The board considered the appeal, denied it, and affirmed the action of the building inspector on the ground that the said premises were to be used for a tenement house, to be located in a residential zone, contrary to the provisions of the ordinance above referred to.

The facts of this case fall within the legal rule which is stated in the opinion filed in Born v. Board of Adjustment of the City of Paterson, ante, p. 551, and for the reasons which are controlling here, as stated in that opinion, the writ is dismissed, but without costs.


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    ALEX M. GOLDBERG, RELATOR, v. MAYOR AND ALDERMEN OF JERSEY CITY, FRANK HAGUE, ARTHUR POTTERTON, JOHN J. BEGGANS, MICHAEL I. FAGAN AND WILLIAM B. QUINN, BOARD OF COMMISSIONERS OF JERSEY CITY, AND EDWARD SPOERER, SUPERINTENDENT OF BUILDINGS OF JERSEY CITY, RESPONDENTS.
    Decided June 14, 1928.

      Before Justices Trenchard, Kalisch and Katzenbach.
    For the relator, Gross & Gross (Isaac Gross, of counsel).
    For the respondents, Thomas J. Brogan (Charles A. Rooney, of counsel).
   Per Curiam.

This is a matter coming before us on a rule to show cause why a’peremptory writ of mandamus should not issue directing the mayor and aldermen of Jersey City to grant a permit for the construction of a public garage and show rooms on premises owned by the relator, and located on the easterly side of Baldwin avenue, between Montgomery street and Mercer street, in Jersey City.

Erom the testimony taken under the rule it appears that the relator’s premises are not located in a district zoned by Jersey City against the erection of garages. There is testimony to the effect that there are a number of garages in the neighborhood of the relator’s premises. It further appears that the relator’s predecessor in title had made an application, accompanied by plans, for the erection of a one-story brick garage, which was to be eighty feet in front and which application was granted, and a building permit issued therefor. But, because the relator’s predecessor in title failed to commence the erection of the garage within a year from the date of the issuance of the permit, as required under the building code of Jersey City, the permit automatically expired.

This circumstance seems to have led the relator to make a new application to the superintendent of buildings for a permit, or for a renewal of the old permit, to erect a garage pursuant to the identical plans which had been theretofore approved by the superintendent, and which plans were on file.

The record discloses that no change whatsoever was made in the plans on file, or that there had been a change in the character of the locality where it was proposed to erect a garage, since the issuance of the permit to the relator’s predecessor in title.

There is also testimony tending to show the relator’s property cannot be used for any other purpose profitably than that of a garage.

On behalf of the respondents it is argued that the relator’s remedy, if he has any, is, properly, by certiorari, and not by mandamus, since the board of commissioners, to whom the application was made, upon the refusal of the permit by the superintendent, affirmed the action of the superintendent, by also refusing the permit.

A complete answer to this contention seems to us to be, that since there is no board of adjustment of Jersey City, or a board analogous thereto in character, clothed with the judicial power of a board of adjustment, to review the granting or refusing of building permits by building inspectors or superintendents of buildings, and as the board of commissioners of Jersey City is not clothed by legislative enactment with any judicial powers to review the action of the superintendent or to relax or broaden the scope of the building ordinance, its refusal, therefore, to grant the relator’s application is subject to mandamus proceedings.

The only other ground urged by respondents in their opposition to the granting of a peremptory mandamus is, that the failure of the relators to file new plans with the second application for a permit, and for the further reason that the erection of a brick garage carries with it a fire hazard, render the relator’s rights to a mandamus not clear, and, therefore, a peremptory writ of mandamus should not issue.

We think, under the facts disclosed by the testimony taken under the rule to show cause, there is sufficient merit shown for the allowance of an alternative writ of mandamus, and an order will be made to that effect.


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    SADIE DOROTHY VENAFRA, RELATOR, v. BOROUGH OF FORT LEE AND STEPHEN KELLY, BUILDING INSPECTOR OF THE BOROUGH OF FORT LEE, RESPONDENTS.
    Decided June 14, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the relator, Hart & Vanderwart (Herman Vanderwart, of counsel).
    For the respondents, no brief.
   Per Curiam.

The relator being the owner of a plot of ground, with a frontage of seventy-five feet on both Columbia avenue and Gumbermede road, in the borough of Eort Lee, the western side of the lot being one hundred and twenty-two feet and seven inches in length, and the eastern side of the lot one hundred and sixty-two feet and one inch in length, by reason of the triangular shape of the lot, and the relator being desirous to have erected on the plot of ground in question a forty-family four-story brick apartment house, had plans and specifications prepared for the erection of the structure, which plans and specifications were approved by the state tenement house supervision. Subsequently she made an application to the building inspector of the borough for a permit to erect the apartment house, accompanying such application with the approved plans and the necessary fee.

The building inspector did not deny the application, but, instead, referred it for instructions to the mayor and council of the borough of Eort Lee, which municipal body denied the permit.

The proposed structure apparently, from the evidence, was designed to be erected in a district zoned against the erection of apartment houses.

The point made in relator’s brief is that the provisions of the zoning ordinance preventing the erection of the relator’s proposed building are unlawful and unreasonable.

The questions raised in the brief of counsel for relator were fully considered in Koplin v. Village of South Orange, 6 N. J. Mis. R. 489, and that case is controlling here, and leads us to deny the application for the writ, but without costs.

Permission is given to enter a rule allowing and directing the molding of the pleadings for the purpose of review, if a review is desired by the relator.


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    PHILIP KANTER AND JOSEPH COHEN, PROSECUTORS, v. BOARD OF ADJUSTMENT OF THE CITY OF EAST ORANGE, COUNTY OF ESSEX; HENRY C. WILLIAMS, SECRETARY OF SAID BOARD, AND THE CITY OF EAST ORANGE, RESPONDENTS.
    Decided June 14, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutors, Howe & Davis.

    For the respondents, no briefs.
   Per Curiam.

The prosecutors are the owners of a tract of land having a frontage of sixty-two feet and'a depth of one hundred and fifty feet, located on the westerly side of Evergreen Place, in the city of East Orange. The prosecutors contemplated the erection of a four-story brick apartment house for the accommodation of thirty-two families. Accordingly they made application to the building inspector of the city of East Orange for a permit, their application, being in due form, was accompanied by plans and specifications, with the required legal fee.

The application was refused upon the ground that a zoning ordinance in force forbids the erection of apartment houses in the district where the prosecutors’ property is located * * * the property being located in a one-family district.

An appeal was taken to the board of adjustment of the city of East Orange, which board heard the matter on the 23d day of March, 1927.

According to the agreed state of the case, it appeared that the proposed building complies in every respect with the building code of the city of East Orange. No testimony was offered to show the building would be detrimental to the health, morals, safety or welfare of the neighborhood, or of the city of East Orange.

The burden of proof to establish that the ordinance was unreasonable was upon the prosecutors. In Feldman & Pivnick v. Board of Adjustment of the City of East Orange, 6 N. J. Mis. R. 520, it was held: “Such board, in its acts, acts judicially on a lawful ascertainment of facts. Bilt-Wel Co. v. Dowling, 5 Id. 180.

“The presumption is that the requirements and regulations of the ordinance are reasonable unless the contrary is shown [Burg v. Ackerman, 5 N. J. Mis. R. 96], and there is a further presumption that the action of the board was right. Silvester v. Princeton, 5 N. J. Adv. R. 1801. It follows, therefore, that the action of the board in refusing to vary or modify the terms of the ordinance will not be disturbed unless its action is shown by lawful evidence to be wrong. Oxford Construction Co. v. Orange, Ibid. 729.”

The decision in the case of Eeldman & Pivnick v. Board of Adjustment of East Orange is controlling here, and, therefore, leads us to dismiss the writ, but without costs.


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    ALLEN K. HARRISON, PROSECUTOR, v. BOARD OF ADJUSTMENT OF THE TOWN OF MONTCLAIR, AND HARRY TRIPPETT, SECRETARY OF SAID BOARD, RESPONDENTS.
    Decided June 14, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutor, Charles Jones.

    For the respondents, George S. Harris.

   Per Curiam.

The prosecutor is the owner of a plot of land fifty by one hundred feet, located in the rear of a lot of land owned by him on Grove street, in the town of Montclair.

The plot on which the proposed garage is to be erected faces directly on a right of way, which is thirty to thirty-six feet in width, and has been in constant use for the last thirty years for vehicular traffic of all kinds and description.

On July 14th, 1926, the prosecutor applied to the building inspector of the town of Montclair for a permit to build the proposed garage, which was to be of concrete block, cement floors and slag roof. No gasoline or oil were to be stored or sold on the premises.

It is not controverted that the written application filed by the prosecutor was not in compliance with the building code of the town of Montclair “so far as the materials and physical construction of the building were concerned, and as to any provision for fireproofing.”

It is also undisputed that the building inspector declined to issue the permit upon the sole ground that the proposed structure violated the zoning ordinance of that town, which ordinance placed the premises in question in the business zone.

Section 9 of the ordinance relating to business zones expressly restricts, by paragraph 4, tfie using or erecting of a building of a garage or group of garages for more than five motor vehicles, except as permitted in section 15, paragraph 9, which latter provision subjects the granting or refusal of a permit by the building inspector to be passed upon by the hoard of adjustment, as to whether or not the construction or use of a building will constitute a menace to the public health, safety, morals or welfare of the city.

From the refusal of the building inspector an appeal was taken by the prosecutor to the board of adjustment. The finding of the board of adjustment, upon testimony taken before it at a public hearing, on the appeal of the prosecutor, as appears in the printed case, by the return of the board of adjustment made to the writ of certiorari is as follows:

“The board finds from the testimony taken, and also from the statements of the applicant and his counsel, that a structure of the dimension, materials and type proposed in this application would greatly enhance the possibility of a sweeping fire, resulting in the loss of property and in the risk and injury and loss of human life. Such proposed building to be used as a public garage, housing a large number of automobiles and located as proposed, would be exposed not only to the risk of fire from its own hazard occupancy, but also from the risk of fire communicated from the adjoining group of frame industrial buildings and frame tenement house, practically surrounding the property in question, creating a menace to public safety and public welfare. The proposed public garage as planned would make access by apparatus of the fire department very difficult. Eor these reasons :
“It is therefore on this 30th day of September, 1926, decided and determined that the decision of the inspector of buildings of the town of Montclair in refusing to issue a permit for the erection of the said building, to wit, a public garage fifty by one 'hundred feet, twelve feet in heighth, from the rear of premises designated on the tax map of the said town as map 35, block fG/ lots 30, 32, 33, is hereby affirmed.”

There is testimony in the case which supports the finding of the board. The board of adjustment acts in a judicial capacity in passing upon the merits of the appeal. Its finding will not be disturbed unless it appears that the finding is without support in law or in fact.

We think the facts and legal questions discussed in the brief of prosecutor in relation thereto are controlled by the decisions in the following cases: Portnof v. Bigelow, 133 Atl. Rep. 534; Long v. Scott, 133 Id. 767; Jersey Land Co. v. Scott, 135 Id. 462; Contras v. Jersey City, 135 Id. 472; Caldwell v. Saul, 135 Id. 691; Hench v. East Orange, 130 Id. 363; Chancellor Development Corporation v. Senior, 134 Id. 337; Burg v. Ackerman, 135 Id. 672; Silvester v. Princeton, 5 N. J. Adv. R. 1801; Oxford Construction Co. v. Orange, Ibid. 729.

The writ is dismissed, but without costs.


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    ROMAN CATHOLIC DIOCESE OF NEWARK, PROSECUTOR, v. JOHN J. McGOVERN AND STATE HIGHWAY COMMISSION, DEFENDANTS.
    Decided June 16, 1928.
    Before Justices Minturn, Black and Campbell.

      For the prosecutor, John Milton.

    For the state highway commission, Edward L. Fatzenbach and Mark A. Sullivan.

   Per Curiam.

The prosecutor ownes and possesses a tract of land five thousand two hundred feet in depth, extending from its cemetery lands in use on the westerly slope of Bergen Hill, in Jersey City, to the easterly shore of the Hackensack river, which it insists it owns and possesses for future cemetery use. To render the site suitable for that purpose will require earth filling to a depth of nine feet, since the land is of a meadow character, over which the tides ebb and filow.

Across this tract, running from north to south, the state highway commission designs to carry the vast road improvement undertaken by the state, having its easterly terminus at the New Jersey exit of the Holland vehicular tunnel under the Hudson river, and continuing westward to the Hackensack and" Passaic rivers, where, after it leaves the connecting streets of intervening municipalities, it continues throughout the state into a diversified state road system, which extends its ramifications into the various sections of the state. This extensive work, obviously, has been undertaken by the state at great public expense by the creation of the defendant, the state highway commission, for the purpose.

The cemetery is incorporated, primarily, for public purposes under the general Cemetery act (1 Comp. Stat., p. 3750), which provides that through its lands where the same are “dedicated to the purposes of a cemetery” there shall not be constructed any street, road, avenue or thoroughfare “without the consent of the trustees of such association, except by special permission of the legislature of the state,” and upon that legislative provision the contention of the prosecutor ultimately and mainly rests; while the state highway commission contends that there is nothing of record to indicate the ownership and dedication of the lands for cemetery uses, so as to bring the property within the contemplation of the legislation and the decisions specifically defining a cemetery use. We do not find it necessary to determine that question, since conceding the fact of dedication we have concluded that the necessary permission of the legislature, required under the provisions of the Cemetery act, was in fact given by the provisions of chapter 319 of the laws of 1927. The title of that act indicates the establishment not of a mere local concession, which might be termed the creation of a subsidiary corporation, but indicates the establishment by the state of a distinct state highway system.

Under the provisions of this comprehensive scheme various routes of travel are specifically outlined, and along' them in the eighteenth section, route number 25, provides its easterly terminus at Jersey City, and extends its course through that city, and through various intervening municipalities across the state, until it reaches the westerly terminus of the state at Bordentown, Burlington and Camden. This route was adopted by the state highway commission on January 4th, 1927, and contracts were executed prior thereto by the commission, providing for the filling in of the adjoining lands so as to connect them through the cemetery property with the Lincoln Highway, which forms the main artery of traved in conjunction with this route to the Hackensack and Passaic rivers. This general road construction was under way on March 30th, 1927, when the act in question was passed, so that it must have been within the legislative contemplation to enact a comprehensive scheme, providing for a continuous state road system from the exit of the Holland tunnel to the Delaware river along a direct line of travel, which could be made feasible only in the most practical and economical method, by connecting the Lincoln Highway with the extensive thoroughfare then under process of construction from the Holland tunnel to the Newark meadows, comprehending the lands in question.

The prosecutor’s lands intervene between the north and south sections of -this legislative scheme, and if the claim contended for were allowed, would present a practical barrier to the continuance of the road construction contemplated by the legislative enactment. The legislative intent, therefore, read in connection with the practical situation of existing road construction at the time of the passage of the act of 1927, cannot well admit of doubt, wherein it directs that route 25 be constructetd “via the present Lincoln Highway crossing the Hackensack and Passaic rivers.” This provision contains the necessary “special permission” required by the Cemetery act, but is also equivalent to a mandate to the commission to pursue such course as may be necessary for the practical and economic execution of the legislative purpose.

This construction renders it unnecessary to consider the contention in the briefs as to the extent of the power of the legislature to abridge the power of the state in the exercise of its sovereign power of eminent domain whenever and wherever the public needs demand it.

The result is that the writ of certiorari will be dismissed.


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    WALTER B. NIVEN, PLAINTIFF, v. METROPOLITAN LUMBER COMPANY, A CORPORATION, DEFENDANT.
    Submitted January 27, 1928
    Decided May 1, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the plaintiff, McCarter & English.

    For the defendant, Merritt Lane.

   Per Curiam.

This is a suit for alleged arrears of salary. The plaintiff had a verdict for the full amount claimed which the defendant on this rule says is excessive, and also urges that error was committed in the charge of the court at the trial.

The issue of fact, as we gather from the somewhat complicated state of the testimony which was due to the consolidation of another case with the present one for the purpose 'of trial, was whether the plaintiff was employed as a vice-president of the defendant company at a salary of $35,000 a year to date from October 1st, 1933, and on a half-time basis from August 15th, 1933, until September- 30th, 1933; or, on the other hand, whether his salary was to be only $1,000 a month until the defendant company had been put on a sounder financial basis, and from that time to run at $35,000 per year. This was substantially the issue put to the jury.

The plaintiff’s story was, at the time he was approached by the president of the defendant for the purpose of inducing him to enter its employment, he, the plaintiff, was working for a firm of certified public accountants and had become known to the officers of the defendant because he had been auditing the defendant’s books; that they desired him to come over to them, and that he finally agreed to do so with the stipulation that until he could gracefully leave his former employers he would give them only half time, and, in due season, would come to them on full time. His claim, as already stated, was that beginning with full time the salary was to be $35,000 a year, but that he was not to draw more than $1,000 a month until such time as the company could afford to pay the full salary, and'thereafter he was not only to receive that full salary, but to be paid for the balance of salary that had not been drawn during the first period. The claim on the part of defendant was that his salary was fixed at $1,000 a month during the period of stress, and that this had been paid. The court, in charging the jury, instructed them that even on the latter basis there would be arrears of salary amounting to $1,166.66 with interest, and that, if the plaintiff’s claim was_ correct, he would be entitled to $8,106.69, with interest. The jury awarded the larger amount, and it is argued that their verdict was against the weight of evidence. We think that it was, and find it unnecessary to go farther than to take the plaintiff’s own testimony on the subject. The plaintiff testified as follows:

“He asked me what idea of salary I had, and I said, 'What is your idea?’ And he said what was my idea, and I said $25,000, and Mr. Jacobson agreed.
“Q. You say he agreed. Give us the substance of what he said as nearly as possible. A. Mr. Jacobson said that salary was all right, but I knew as an auditor of the company that the cash position of the company was very poor, they had quite an amount of money involved in the real estate business, but it was tied up and not easy to liquidate and had great difficulty in meeting all their financial obligations, and I said, rather than pull out at the rate of $25,000 I would take $1,000 a month until the financial position of the company was such as to pay $25,000 a year. Mr. Jacobson said that he thought that was a good idea, and that his salary the previous year had been $50,000, and that he would keep his salary down to just what he required himself.
"Q. After making that arrangement did you enter into Mr. Jacobson’s employ? A. I did on August 15th.”

The plaintiff further testified that he worked on half time until September 30th, and that in August there was a meeting held and he was appointed vice-president and director, and that after September 30th he devoted all his time to the company’s affairs. The resolution of appointment was received in evidence, and says nothing whatever with regard to the fixing of any salary.

Our interpretation of the plaintiff’s testimony about the agreement concerning his salary is that the plaintiff was to accept $1,000 a month as his salary until the financial position of the company was such as to pay $25,000 a year, and we think this is confirmed by the statement that Mr. Jacobson, the president, agreed to reduce his own salary to correspond.

It is unnecessary to go further into the facts, and we think the verdict was against the weight of evidence, and that the jury were not justified in finding a larger verdict for the plaintiff than $1,166.66, with interest. If the plaintiff will accept a reduction of the verdict to that amount the rule to show cause will be discharged; otherwise, it will be made absolute.

The reasons' contain certain objections to portions of the charge, but as they are not argued, we have not considered them..