text:
    W. Scott Taylor, Jr., complainant, v. City of Trenton, defendant.
    [Decided February 27th, 1925.]
    Municipalities — improvements—Damages in Widening Street— Bill to Set Aside Release Given by Property Owner — No Ground for Setting Aside Release Because of Misrepresentation or of Mutual Mistake of Fact — Duty to Award Just and Fair Compensation, but Not More — If Complainant Believed He Had No Appeal it was a Mistake of Law, Not of Fact, and was Not Induced by Assessors or by City.
    On final hearing.

      Mr. James J. McGoogan, for the complainant.

      Mr. Charles E. Bird, for the defendant.
   Buchanan, Y. C.

The bill is filed to set aside a release given by complainant to defendant, on his acceptance of an award of $16,120 for the taking of a strip of five feet across the front of complainant’s premises in connection with a street widening improvement. The taking of this strip entailed cutting off five feet from the front of complainant’s building, and necessarily, therefore, the replacement of the front wail and some considerable alterations of the interior of the building.

Complainant says that he estimated his damages at $21,-000, and submitted this to the city assessors. This, apparently, included a sum of $3,300, the value of the land only, leaving about $18,000 as his estimate of the consequential damages at $12,820. He alleges that he relied on the city’s estimate, and accepted the award, which, with the amount for land and loss of rents during alterations, totaled $10,120.

It is clear that there is no ground for setting aside the release on the ground of misrepresentation (no fraud or lack of good faith is charged or intimated). The proofs do not show any representation. The mere statement of the assessors that their estimate of the cost of repairs, &c., was $12,-000, cannot be called a representation. It was, admittedly, only an estimate, with the assistance of an architect and one or more building contractors.

I think it is likewise clear that the relief cannot be granted on the ground of mutual mistake of fact. Assuming, without deciding, that a mutual mistake as to a matter of estimate may be deemed a mutual mistake of fact, the estimate in question was an estimate of the cost of making repairs, alterations and improvements to complainant’s buildings in accordance with a particular plan or scheme of complainant. .Some portion of the work involved in this plan comprised repairs and replacements necessitated by the cutting off of the front five feet of the building; other portions of the work were improvements not so1 necessitated, such, for example, as the putting in of new floor and the replacement of the old furnace or boiler with a new one.

The duty of the assessors, under the law, was to award to complainant, for the taking of his lands and the consequential damage, just and fair compensation, but not more. Complainant’s plan for “revamping” his premises may well have been the best thing for him to do under the circumstances, but the proofs do not show that the cost of carrying out this entire plan, in fact, was not in excess of just and fair compensation for his actual damages, nor that it was' in excess of the judgment of the assessors as to such just and fair compensation.

In other words, the proofs do not show that the assessors intended to award complainant, as just and fair' compensation for his damages, the entire estimated cost of execution of complainant’s entire plan, and made a mistake .in esti mating such entire cost.

It also appears that complainant believed he had no appeal. from the amount determined by the assessors. That, however, was a mistake of law, not of fact; was not a mutual mistake, and was not induced by the assessors or the city, and hence cannot entitle complainant to the relief sought.

The bill must be dismissed.


source: Caselaw Access Project

author: Backes, Y. C.

license: Public Domain

text:
    Matthew T. Boone, petitioner, v. Grace L. Boone, defendant.
    [Decided February 27th, 1925.]
    Master's Fees — Stenographer’s Fees on References! — Master May Charge Only Amount Allowed in Fee Bill — If Stenographers are Employed to do Their Work, Master, Not Litigant, Must Pay Bill! — Court Rule 178 Considered — Old Rule 110 was Abrogated When Office of Examiner was Abolished.

      21.r. George A. Douglass, for the petitioner.
   Backes, Y. C.

This undefended divorce suit was referred to a master to take proofs and report his findings. The solicitor for petitioner paid the master the fees allowed by statute. The master called in a stenographer to take the testimony, and the stenographer submitted a bill for his services to the solicitor for the petitioner. The solicitor asks to be relieved of the charge. I am informed that it is the practice of some masters to require litigants to pay for such stenographic work, and for authority rely upon rule 178 of this court, which provides that, upon references to- a master, the examination of the witnesses shall “at the expense of the party requiring it” he reduced to writing by the master, and that the master may permit such examination to be taken by a stenographer selected by him.

The quoted language of the rule means simply that, in the first instance, each party-litigant must pay. for his own testimony — for the testimony he desires to have reduced to writing. Eor this the master may charge oidy the amount allowed by the fee bill. Comp. Sial. p. 2277. Thirty cents a folio. P. L. 1920 p. 412. If masters employ stenographers to do their work, they, not the litigant, must foot the bill.

Under the old and now obsolete practice of taking testimony before examiners, for nse on final hearing, our rule regulated the division of fees for the taking of testimony stenographically, by awarding to the master. one-third and two-thirds to the stenographer. Eule 110, November 7th, 1883; rules of 1910. When Chancellor Walker abolished the office of examiners and vested their powers and duties in masters (revised rules 1917), rule 110 was abrogated, so that now the division of fees is a matter of private bargain between the master and the stenographer.

Masters who have misapprehended the rule; and taxed for such services, or allowed their stenographer to do so, are expected to, and no doubt will, promptly make restitution.


author: Per Curiam.

text:
    HOWARD EVERINGHAM, PROSECUTOR, v. CITY OF MILLVILLE, DEFENDANT. W. FREDERICK STECKLE, PROSECUTOR, v. CITY OF MILLVILLE, DEFENDANT. RALPH EAGAN, PROSECUTOR, v. CITY OF MILLVILLE, DEFENDANT.
    Decided March 4, 1925.
    Crimes — Municipal Ordinances — Public Nuisances — Sale of Liquor in Violation of a Municipal Ordinance to Abate Nuisances — Public Nuisances are Indictable Offences, and Persons Guilty Cannot be Tried Except Upon Indictment— A Mayor's Court is Without Jurisdiction Notwithstanding the Ordinance.
    Oil certiorari.

    Before Justices Kalisch, Black and Campbell.
    Eor the prosecutors, Henry O. Burt.

    For the defendant, Louis II. Miller.

   Per Curiam.

The three cases involve the same legal proposition and were argued together. The complaints upon which the prosecutors were convicted are couched in the same language so that the quoting of the contents of one will properly present the legal question, involved in all. The complaint reads: That on the first day of January, 1924, and at divers other times from thence hitherto;, at the city of Millville, Cumberland county, New Jersey, one Howard Everingham, of Millville, did commit a nuisance in the city of Millville by violating the provisions of subdivision A of section 1 of ordinance No. 234 of said city, to wit: The said Howard Everingham did violate said subdivision A of said ordinance by selling to Ben Locke, Maggie Clevenger, Howard Yan Hock, Ed. Bartlett, Louis Craig, Thos. Miller, Bill Lloyd, W. Faeemeyer, Daniel Kerns and others, at divers times from the first day of January, 1924, to this date, divers quantities of spirituous, vinous, malt or brewed liquors, where the sales were not authorized by law, said liquors having the same intendment and meaning as declared and defined in Pamph. L. 1922, cih. 255, of the State of New Jersey, contrary to the provisions of subdivision A, section 1 of ordinance No. 234 of the city of Millville, which said section makes a nuisance, and thereby unlawful, the habitual sale of spirituous, vinous, malt or brewed liquors, except where the sales shall have been authorized, by law. ”

The ordinance alleged to have been violated is entitled: “An ordinance to declare and prevent, and summarily to abate, certain nuisances caused by the sale of spirituous, vinous, malt and brewed liquor, and by drunkenness and by habitual disorderly conduct that disturbs the peace and quiet of the neighborhood.

The ordinance then proceeds to declare that the commission of any of the following acts contained in the various subdivisions of the ordinance is a nuisance.

For the prosecutor it is contended, and his counsel argues, in his brief, that under the complaint and ordinances the prosecutor is charged with an indictable criminal offense, and brought to trial without the presentment or indictment of a grand jury and trial by jury in violation of article 1, section 9 of the constitution of the State of New Jersey, and that therefore the conviction of the prosecutor should be set aside.

We are of the opinion that the facts set out in the complaint charged the prosecutor with an indictable offense, and, hence, was not within the jurisdiction of the mayor’s court to try and determine.

A public nuisance is an indictable offense. The habitual unlawful sales of liquor constitutes the place where it is sold a nuisance.

In State v. Anderson, 40 N. J. L. 224, Chief Justice Beasley said: “A statute authorizing the prosecution of the offense of keeping a disorderly house by a city court, without an indictment found by a grand jury, is illegal on constitutional grounds.” See Meyer v. State, 41 N. J. L. 6; affirmed (Court of Errors and Appeals), 42 Id. 157, 158.

In Atlantic City v. Annie Rollins, 76 N. J. L. 254, Mr. Justice Garrison, in speaking for the Supreme Court (at p. 255), says: “The complaint was that the prosecutrix kept a disorderly house. It is said that the conviction is authorized by city ordinance and that such ordinance is authorized hv “An act relating to, regulating and providing for the government of cities.” Pamph. L. 1902, p. 284. “If the statute or any other statute purports to authorize the prosecution and conviction of the offense of keeping a disorderly house otherwise than upon indictment by the grand jury, such statute is invalid upon constitutional grounds. This is established in this court by the ease of State v. Anderson, 11 Vr. 224.”

Mr. Justice Treuehard, in speaking for the Court of Errors and Appeals, in State v. Rodgers, 91 N. J. L. 212 (at pp. 214, 215), says: “We think it is quite clear that the thing prohibited in the supplement of 1913, namely, the driving of an automobile or other vehicle upon a public street while under the influence of intoxicating liquor, is not a public or common nuisance indictable at common law, The essential elements of the statutory offense are — (1) driving an automobile or vehicle; (2) upon a public street; (3) while under the influence of intoxicating liquors.”

“The essential elements of a public or common nuisance are quite different. A public or common nuisance is any act or neglect, the product of which works an annoyance or injury to the entire community, or the product itself is termed a nuisance.” 1 Risk.. Crim. L., § 1072.

The facts set out in the, complaint, in the present case, in express terms, charges the prosecutor with the commission of acts constituting a public nuisance.

We cannot distinguish the legal principle governing the ordinance and the facts of the present case from the principle declared in Hedden v. Hand, 90 N. J. Eq. 583, by the Court of Errors and Appeals, in construing a statute entitled: “An act declaring all buildings and places wherein or upon which acts of lewdness, assignation or prostitution or the habitual sale of intoxicating liquor in violation of law are permitted or occur to be nuisances, and''providing for the abatement thereof by the Court of Chancery, and where the court held that not only was the act unconstitutional because it attempted to give the Court of' Chancery authority to abate certain public nuisances, of a character specified in the act, which are criminal offences, but, also, because, in effect, it was holding a person for a criminal offense without the presentment or indictment of a grand jury.”

The title of the ordinance under consideration reads: “An ordinance to declare and'prevent and summarily to abate certain nuisances caused by the sale of spirituous, vinous, malt and brewed liquor,” &c.

The legal situation, presented by the complaint and facts, in Richardson v. State Board, &c., 98 N. J. L. 690, is analagous to the situation in the case sub judice. In the case cited, complaint was made against the accused for the violation of the provisions of “An act concerning the welfare of children” (Pamph. L., p. 441), in the Quarter Sessions, and the case was tried by the court in a summary proceeding, as directed by the statute. The complaint set forth acts which constituted assault and battery, and the prosecutrix having been convicted, upon an appeal to the Supreme Court, the conviction was set aside upon the ground that ,as the offense was one indictable at common law, the offender was only punishable after an indictment, trial and conviction by a jury-

On appeal to the Court of Errors and Appeals, that court, in affirming the Supreme Court, said: “Assuming that for the purpose of deciding the present appeal that the statute has this scope, it is clearly unconstitutional to that extent. Air assault and battery, no matter under what circumstances it may have been committed, is crime indictable at common law, punishable by fine and imprisonment or both. Whether a person who has committed a crime indictable at common law can be tried, convicted and punished in this state, in a summary proceeding, is not' an open question. It was considered and decided in the case of State v. Anderson, 40 N. J. L. 224, 227, adversely to the contention of the present appellant, and the soundness of that decision has never been challenged in any subsequent judicial pronouncement.” 123 Atl. Rep. 720, 721.

What is attempted to be accomplished by the ordinance in question is not only to subject an accused to be tried in a summary proceeding for the commission of a common law offense, in a city court, in express violation of constitutional provision, as has been sufficiently pointed out, but, also> upon conviction of an offender to abate the nuisance, a power which is only lodged in our criminal courts, proceeding in the course of the common law.

The conviction in each case is set aside, with costs.


text:
    THE STATE, DEFENDANT IN CERTIORARI, v. GEORGE BAILEY, PROSECUTOR.
    Decided March 12, 1925.
    Motor Vehicle — Driving in Intoxicated Condition — Proof of Guilt Clear as Appeared From Testimony — Prosecutor Did Not Plead in Common Pleas Court Upon Hearing to Set Aside Conviction — Summary Proceedings, From Time Immemorial There Have Been No Formal Pleadings — Complaint Not Fatally Defective Because It Did Not Charge Violation Under Amendment of 1923 to Motor Vehicle Act.
    On certiorañ to Mercer County Common Pleas Court.
    Before Justices Kalis ch, BlxICK and Campbell.

      For the prosecutor, John L. Heher.

    For the state, Romulus P. Rimo.

   Per Curiam.

The prosecutor was convicted in the police court of the city of Trenton on September 19th, 1923, upon a complaint charging that he did, on the 11th day of September, 1923, operate and drive an automobile upon South Broad street, in said city, under the influence of intoxicating liquor, in violation of paragraph 3, section 14 of the Motor Vehicle act of April 8th, 1921. Upon- this conviction the prosecutor was sentenced to' imprisonment in the county jail of Mercer county for a period of thirty days. From this conviction the prosecutor appealed to the Court of Common Pleas, where he had a trial de nova, and was again convicted and sentenced to a like punishment as pronounced in the police court.

The first reason presented for reversal of the conviction and judgment is, that the testimony adduced upon the appeal was not sufficient to prove the offense alleged in the complaint. A fair reading of the testimony clearly demonstrates that the prosecutor’s contention is wholly without merit. The proof was clear and convincing that the prosecutor .operated his car on a public highway in the city of Trenton while under the influence of liquor..

The second reason urged for setting aside the conviction is, that the prosecutor did not plead in the Court of Common Pleas upon the hearing of the appeal to the offense alleged in the complaint, and because the record of conviction in said court .does not contain a plea by the prosecutor to the offense.

It is to be observed that the proceeding was a summary one, based upon a penal statute.

From time immemorial whereof the memory of man runneth not to the contrary in this class of cases, there were no formal -pleadings, such as obtained in proceedings in the course of the common law, based upo-n an indictable offense. An examination of the early cases uniformly discloses that, where the proceedings were directed by the statute to1 be summary in their nature, the offender was arrested or summoned, as tire case may be, and brought before the magistrate, who either read the complaint to the accused or informed him oí its contents, and it was then open to the accused to either admit his guilt or request a trial on the- charge against him. We have not been referred to any ease where a plea was required of the accused before the magistrate had jurisdiction to try the case. The statute, which was the basis of the present proceeding, makes no provision for any formal plea to 1)0 entered by an accused to the complaint. It was therefore unnecessary that it should appear in the record, sent up by the magistrate’s court to the Common Pleas Court, that there was a plea taken. The magistrate’s record is in the form of, and complies with, the statute underlying these proceedings.

Now, what has been said in regard to the procedure in the magistrate's court applies with equal force to the case on appeal in the Court of Common Pleas. There is, however, a stronger ground, if this be possible, why the insistence of counsel for prosecutor, that because no plea was taken in the Common Pleas Court of the accused appellant, that, therefore, the court was without jurisdiction, cannot prevail. The accused came into the Court of Common Pleas upon his appeal, and asked that tribunal for a trial de novo on the facts. This was accorded him. The circumstance that he requested a trial de novo on the facts was, tantamount to a plea of not guilty to the complaint made against him. No legal right of his, under the statute, in failing to take a plea, was thereby violated.

Point three, relied on by counsel for the prosecutor, is that the complaint is fatally defective, in that it does not charge a violation of the proper statute.

The complaint charges a violation-of paragraph 3, section 14 of the Motor Vehicle act. There was an amendment to the act passed in 1923, and no mention is made of that act in the complaint. We had occasion to deal with the question raised in State v. Rosenblum, 2 N. J. Adv. R. 1882; 126 Atl. Rep. 852, and what was said there, in the opinion of this court in that case, controls here.

The amendment did not alter the substance of the section of the act of 1921, but left it as it was, except to add to the words, “not less than thirty days and not more than six months,” the words, “in the common jail of the county wherein the offense was committed,” and it was pointed out in the case referred to that this amendment was wholly unnecessary.

Under point 4 it is argued, on behalf of the prosecutor, that the act of 1923 is unconstitutional, because the object of the act is not expressed in the title, and because the amendment therein mentioned is not made in accordance with the provisions of the constitution.

In the view we have taken of the case before us we do- not deem it necessary to- pass upon this question, since in either aspect, whether the act be valid or invalid, it cannot properly affect the conviction had under the act of 1921.

Lastly, it is argued on behalf of the prosecutor, though glaringly inconsistent with the claim made that the act is unconstitutional, that the failure of the Court of Common Pleas in the conviction and commitment of the prosecutor to observe the provisions of the act of 1923, entitles the prosecutor to‘ a reversal.

We have pointed out in State v. Rosenblum, supra, that the statute, as to the form of conviction and commitment, applied only to the courts of first instance and not to the Common Pleas Court.

The writ is dismissed, and the judgment of the Common Pleas Court is affirmed, with costs.


author: Pee C deiam.

text:
    H. JOHN HOMAN ET AL., PROSECUTORS, v. THE BOARD OF EDUCATION OF CAMDEN, DEFENDANT.
    Submitted January term, 1925
    Decided March 3, 1925.
    Public Works — Competitive Bidding — Financial Responsibility of Bidder Not Questioned — Neither Advertisement nor Municipal Body Required Bidders to Conform to a Common Time Limit — This Affords No Common Ground for Competition.
    On certiorari.

    Before Justices Kalisch, Black and Campbell.
    For the prosecutors, Grover G. liichman and William J. Kraft.

    'For the defendant, Frank F. Neulze.

   Pee C deiam.

The writ of certiorari was issued to review the action of the defendant in awarding the contract for the erection of a school house, known as the Kosedale School, on the 24th day of September, 1924.

The prosecutor’s bid, after public advertisement, was $191,330.

The defendant’s bid was $198,689.

The ground upon which the prosecutors seek to set aside the award of the contract is, that it is in violation of the statute, which provides, "all contracts shall be awarded to the lowest responsible bidder.” 4 Comp. Slat, of N. J., p. 4141, § 53.

This provision limits the power of the board. Schwitzer v. Board of Education, 19 N. J. L. 342.

What constitutes responsibility within the meaning of the statute is fully discussed and illustrated in the cases of Paterson Contracting Co. v. City of Hackensack, 1 N. J. Adv. R. 1449; Peluso v. Hoboken, 98 N. J. L. 706; Harrington's Sons' Co. v. Jersey City, 78 Id. 610.

Under these cases, it is, not shown in the record that the prosecutors were not “responsible bidders” within the meaning of the statute, and in the defendant’s brief it is stated, at the very outset let it be made clear, that the financial responsibility of the H. John Homan Company is not questioned by the defendant. Mr. Homer H. Lotier, a witness, and member of the board of education, at page 164 of the record,, testified: "Q. Now, it is true, is it not, that each contractor was privileged to state his own time within which he could complete the contract? A. Oh, yes,’ves, they stated their own time.” The advertising for bids, however, requested that the time be stated in the contract within which the building would be finished.

As was, said by this court, in the ease of Armitage v. Mayor, &c., of Newark, 86 N. J. L. 6, the general vice of this course is that no common standard for the competition is set up. So, in Johnson v. Atlantic City, 85 Id. 145 ; Tice v. Commissioners of Long Branch, 98 Id. 214, testimony was taken which is urged as a justification of the board’s action, viz., that the prosecutors delayed the completion of prior contracts with the board, but this is no legal excuse for not complying with the plain mandate of the statute.

Por these reasons the award of the contract in this case is set aside, with costs.


text:
    NICHOLAS LAGANI, PLAINTIFF, v. PUBLIC SERVICE RAILWAY COMPANY, DEFENDANT.
    Submitted November 6, 1924
    Decided March 18, 1925.
    Negligence — Injury While Alighting From Trolley Car — Conflict of Testimony Whether Accident Actually Occurred While Alighting, or Afterward Through Contact With Another Car —Judgment for Plaintiff Appealed as Against Weight of Evidence — Not Apparent That It was So Much Against Weight as to Justify Reversal.
    On defendant’s rule to show cause.
    Before Gummeee, Chief Justice, and Justices Parker and Katzenrach.
    For the plaintiff, Feinberg & Feinberg.

    For the defendant, Leonard J. Tynan.

   Per Curiam.

Plaintiff was injured upon the occasion of his alighting from a car of the defendant company on which he had been a passenger, at the corner of Avenue C and Thirty-eighth street, in the city of Bayonne. The plaintiff made the rather unusual claim that, having hoarded the car at Twenty-second street, and desiring to alight at Thirty-eighth street, there was some dispute with the conductor as to whether he had paid Ms fare, that the car stopped and the folding door of the vestibule was opened partly to allow plaintiff to alight and partly to allow an intending passenger to get aboard, and that, as plaintiff stopped down to alight from the car, the door was suddenly slammed and caught his head, breaking his jaw and inflicting other rather serious injuries, for which he had to be taken to the hospital. This was the gravamen of the plaintiff’s case. The claim on the part of the defendant was that nothing of this kind happened, but that the plaintiff dismounted uninjured from the car, and, going around the rear of it to cross the southbound track on his day to his work, he ran into the front of a southbound car which was passing at the time. This was the substantial dis-' pute between the parties, and tire jury resolved it in favor of the plaintiff’s claim.

The only reason urged on this rule is that the verdict was against the weight of evidence. Numerically, the witnesses are about equally balanced, and their stories are equally positive. The evidence is very conflicting as to where plaintiff was lying when he was picked up. If he was lying on tire northbound track or to- the eastward of it, this fact would make for the correctness of his claim. If, on the other hand, he was lying on or near the southbound track when picked up, it would support the claim of the defendant. As a matter of fact, he seems to have been picked up by the driver and passengers of a sort of jitney bus which was. on its way-southward on the westerly side of Avenue C, containing employes of the Standard Oil Company, who were being transported to their work at Constable’s Hook, and their testimony is very positive that tire plaintiff was lying over towards the easterly curb of Avenue C, and that the bus had to. cross over to the wrong side of the street in order to- pick him up. These witnesses were, of course, entirely unprejudiced, and they seem to have been thoroughly intelligent.

On a view of the whole evidence, we- -do not feel satisfied that the verdict of the jury was so much against the weight of evidence as to bring it within the rule justifying a reversal of the verdict and a new trial, and while the plaintiff’s story is a somewhat strange one, we conclude tha¡¿ the rule to show cause ought to be discharged.


author: Pek Cukiam.

text:
    THRASYBULE D. LAZARIDES, ETC., PLAINTIFF, v. WILLIAM STEVENSON, DEFENDANT.
    Submitted November 6, 1924
    Decided March 18, 1925.
    Sale of Goods — Defendant Disputes Responsibility for Purchase, Alleging a Corporation to be Formed to Have Been the Purchaser — Later, That Another Person, a Backer of the Proposed Corporation Would be Responsible — Second Trial —'Verdict for Defendant at First Trial was Set Aside Because the Responsibility of a Corporation in Posse Not in Esse was Questioned — Second Verdict for Defendant on Similar State of Facts Should Cause Court to Hesitate Before Granting New Trial.
    On plaintiff’s rule to show cause.
    Before Gummeke, Chief Justice, and Justices' Pakiceb and Katzenbach.
    For the plaintiff, Absalom P. Bachman.

    For the defendant, Elmer W. Romine.

   Pek Cukiam.

This is a suit to recover a balance claimed to be due for certain automobile specialties made by the plaintiff upon special order, and for which, as he claimed, the defendant agreed to pay. The present rule brings up a second verdict for the defendant in this action, and, although there are slight differences to be found in the evidence at the two trials, tho substantial claims on both side are practically the same. It was admitted that the defendant, Stevenson, had ordered the articles in question, and it is quite plain from the case before us that at the time they were ordered there was in contemplation the organization of a corporation which was to exploit them, and that Stevenson was one of the parties principally interested in the proposed corporation, and that another man named Burrows was the other. Burrows was, obviously, the financier of the combination, and, in fact, has made all the payments upon the plaintiff’s claim that were made. The articles to be manufactured were of two classes: the first is called gas savers, and tire second seems to be a variety of spark plugs. The gas savers were furnished, and, ultimately, paid for. The plaintiff progressed with the spark plugs so far as to procure certain material, and, possibly, do certain work, but, before they were delivered or completed, the order was canceled, and he disposed of the material at a considerable loss.

The suit was brought against the defendant, Stevenson, personally. There was another suit in New York against Burrows, of which notice will be taken in a moment.

The principal defense at the first trial was that the plaintiff had been notified before he accepted the order, and when he asked who was going to pay for the goods, that the payment was to be made by the projected corporation. The jury found a verdict for the defendant, and, on rule to show cause, the verdict was set aside by this court in a per curiam which intimated that a finding that a corporation which had never been organized and was merely in posse, but not in esse, was against the 'weight of evidence. At the second trial tire defense shifted sonrwhat and amounted to practically this: That defendant, Stevenson, had told the plaintiff on the first occasion, when he went to arrange for the manufacture of the goods, “I told him we were forming a corporation and I had an invention developed and had backing, and I was responsible for all bills contracted; that was my agreement with him. * * * I told him everything about it. * * * I told him we started forming a corporation in September— that was long before I went down to see him — and the first time I told him the whole circumstances.”. Later in his testimony the defendant said that he went back to the plaintiff a second time and told him he had taken the matter up with Mr. Burrows; that Mr. Burrows said it was all right; that plaintiff asked him who was going to pay for them, and defondant told him that Burrows, would pay for them; that later Burrows came down with the defendant to the plaintiff’s place and a conversation was had, and that, on that occasion the plaintiff asked Mr. Burrows who was responsible for paying, and Mr. Burrows said: “Get the work completed and T will see that you get your money.”

It further appeared, as has already been stated, that Burrows had made certain payments on the gas savers, and that later the plaintiff had sued him in New York; that he had paid some $600. Also, there appears, to have been some sort of a writing signed by the defendant, at the instance of the plaintiff, declaring that Burrows was the responsible party.

The substantial question of fact laid before the jury was whether Stevenson had promised to pay for the goods, himself, either expressly or impliedly, or whether plaintiff had made them in reliance upon an undertaking of Burrows to pay for them.

This is a second verdict for the defendant on a generally similar state of facts, and we think it a proper' case for the application of the rule enunciated in Brown v. Paterson Paper Co., 69 N. J. L. 475, where a new trial was denied upon the principle that a second concurring verdict upon the same state of facts, or on slightly varying evidence, should cause the court to hesitate before granting a third trial.

The rule to show cause will therefore be discharged.


author: Pee Ctjeiam.

text:
    WILLIAM E. CARROLL ET AL., PROSECUTORS, v. CITY OF BAYONNE, DEFENDANT.
    Decided March 19, 1925.
    Municipalities — Public Offices — Policeman and Fireman — Officers Duly Appointed Pursuant to Resolution of Governing Body —Rescinding Resolution Adopted by a Subsequent Board on Ground That Their Services Were Not Required, Set Aside as to Those Officers Who Were Veterans, Because of the Veterans’ Act, as to Ail Because They Were Protected by the Tenure of Office Act and Could Not be Removed Except Upon Charges.
    On certiorari.

    Before Justices Kalisch, Black and Campbell.
    Eor the prosecutor, Fallon & Fallon.

    Eor the defendant, James Benny.

   Pee Ctjeiam.

The city of Bayonne has a commission form of government, operating under the so- termed “Walsh act.” On May 11th, 1923, some of the prosecutors were appointed as firemen and others as policemen, by resolutions passed by the board of commissioners. The appointments were made by the board four days before the expiration of its legal existence, which terminted on the 15th day of May, 1923, at twelve o’clock, noon.

The incoming board of commissioners soon after its organization, on the date last mentioned, rescinded the resolution by which the prosecutors were appointed. The policemen and firemen affected by the resolution sued out writs of certiorari, with the result that the resolution was set aside by a judgment of the Supreme Court, which judgment was affirmed by the Court of Errors and Appeals. Carroll et al. v. City of Bayonne, 124 Atl. Rep. 613. The ground upon which the resolution of the incoming board was set aside was that it had not come into legal existence at the time it passed the rescinding resolution. On the 20th day of May, 1924, a year later, the board of commissioners, by a resolution declaring that, in its judgment, the present financial condition of the city of Ravonne does not warrant, nor do. the needs of the police department require an increase in the number of patrolmen in that department, that, therefore, in the exercise of the discretion vested in the hoard, and in the interest of municipal economy, rescind and revoke the resolution of May 11th, 1923, by which the prosecutors were appointed, forty of which were patrolmen and ten firemen. On the 27th day of May, 1924, the board passed a like resolution as to three more patrolmen and one fireman. In each of the resolutions it is declared that the positions to which the patrolmen and firemen were appointed are abolished.

Both of the resolutions have been removed to- this court by writs of certiorari by the prosecutors, and the cases, were consolidated by order of this court.

We have not considered all the reasons, presented in the brief of counsel on behalf of the prosecutors since: we have reached the result that both of the resolutions must be set aside.

First, it cannot legally affect the tenure of the positions held by tbe prosecutors, Barry, O’Donnell, Gibson, Joyce, Dittrich, Melofchik, Dwovanski, Eolger, Stein, Nolan, Cohn, Yassar, Sweeney, Taylor, Hauch, Epstein, Burns, Albert, McCarthy, Finley, who were veterans of the World war, in the service of the United States and hono-rably discharged, for as to them the resolution is, inoperative by reason of the express declaration of section 3, chapter 14 (Pamph. L. 1907), which, provides: “It, shall not be lawful for any board of commissioners * * * to abolish any position or office held by a,nv soldier, sailor or marine, who- has served in anv war of the United States, and has been honorably discharged from the United States service.” * * *

Second. All the prosecutors appointed, whether as patrolmen or firemen, were protected against removal from their respective offices by the Tenure of Office act provisions, and could not lawfully be removed except upon charges preferred, namely, notice, a hearing and conviction.

See sections 3 and 5 of articles 16 and 17, chapter 152 of the Pamph. L. 1917.

The state of the case contains a stipulation that no charges were preferred' against any of the prosecutors. The resolutions in question, based squarely upon the assertion that the positions of patrolmen and firemen are abolished, which, declaration viewed, in the light of the necessity of a municipality, no matter how sparsely it may be populated, to provide its inhabitants with adequate police and fire protection, seems to border upon the ridiculous. There is a marked difference between the act of abolishing" an office or position which has become a sinecure, and a case where, under the guise of economy, it is sought to reduce- the- number of the police o-r firemen in tire employ of a. municipality.

As the prosecutors were protected against removal by virtue of the Tenure- of Office act, they could not be removed except in the manner prescribed by the statute. To sanction the attempt of the board to accomplish in an indirect way tire-dismissal of the prosecutors from service, by abolishing the position o-r office, is to pave the way for the annihilation of the operation of the- Tenure o-f Office act altogether.

Moreover, it is difficult to comprehend how the board could properly abolish the office of patrolmen or of firemen as to some and not as to- all. If the office of patrolmen or of firemen had become wholly useless in the city of Bayonne, a populous city, an unlooked for ideal situation, then it becomes at once manifest that to- retain some patrolmen and some firemen was the result of unjust discrimination on part of the board, based upon partisan reasons, in the absence of any good reason appearing to the contrary. We- think a fair reading" of the testimony warrants us in finding that the resolutions were.the outcome of partisan discrimination, which renders them ineffective’, by virtue of the Tenure of Office act.

The facts of this case distinguish it very clearly from those cases cited in the brief of defendant’s counsel, holding that neither the Veterans’ act nor the Tenure of Office act prevents a municipality, in the interest of efficient and economical administration, from reducing the number of employes. The facts, as disclosed by the testimony, do> not present the essential features, which prevent the application of either statute to the attempt to remove the prosecutors from office.

The resolutions are set aside, with costs.


author: Per Curiam..

text:
    IN THE MATTER OF THE APPLICATION OF PAUL H. WENDEL TO BE RESTORED TO THE ROLL OF ATTORNEYS AND TO BE REINSTATED AS AN ATTORNEY-AT-LAW.
    Argued January 19, 1925
    Decided March 20, 1925.
    Attorney’s at Law — Disbarment—Reinstatement—Attorney Convicted of Perjuryi — New Evidence Convinces Court of Pardons, Bar Association and Court of Innocence — Reinstatement Ordered.
    On petition, &c.
    Before Gummere, .Chief Justice, and Justices Teen-chard, Parker, Minturn, Black, Katzenbaci-i, Lloyd and Campbell.
    For the petitioner, Robert Carey.

   Per Curiam..

The petitioner, Paul PI. Wendel, an attorney-at-law, was indicted by the grand jury of Mercer county for perjury in testimony given by him in a suit before Vice Chancellor Buchanan. Pie was convicted in the Mercer Sessions, in March, 1920, and sentenced to a term in the county workhouse. That conviction was reviewed as to alleged errors of law only, and affirmed in the Supreme Court and the Court of Errors and Appeals, and, subsequently, his name was stricken from the roll of attorneys.

Meanwhile, investigations conducted by Wendel (who throughout asserted his innocence) and his counsel, and by counsel and by others in Iris behalf, tended to show his innocence, as he contended, and he applied to the trial judge of the Mercer Sessions, before whom he had been convicted, for a new trial, which the judge denied because the application was not made within the time limited by Pamph, L. 1921, ch. 236. Wendel thereupon served his term, and upon its expiration continued his investigations, and laid the result thereof, consisting of evidence of various kinds, newly discovered, lief ore Vice Chancellor Buchanan (at whose instance the charge against him was 'originally laid before the grand jury), with the result that the Vice Chancellor became satisfied of his innocence, and suggested an application to the court of pardons. Such appjieation was made1, accompanied by a very full presentation of pertinent records, documents and statements, and also- accompanied by a letter addressed by the Vice Chancellor to the court of pardons saying, among other things, that “on consideration of the transcript of the trial, together with additional facts and information obtained by him subsequent to the trial, * * * I personally am very strongly inclined to the belief that Wendel was not guilty of perjury.” The result was that Wendel received from the court of pardons “a full and free pardon for the crime of which he was. convicted.”

Wendel then, in pursuance of the practice in such cases outlined In re Harris, 88 N. J. L. 18, began the present proceedings for reinstatement as an attorney-at-law. He seems to have complied fully with the requirements, as laid down in the Harris ease. He gave notice to the Mercer County Bar Association of his intention to make this application for reinstatement. Pursuant thereto' a hearing was held, for the purpose of investigation and recommendation, by the bar association, through its committee duly appointed by the president thereof for that purpose, of which meeting due notice was given to all its members and the public. This committee publicly heard the testimony of Wendel and many others. It considered statements and communications in writing made by the judge and officials concerned in the trial, by numerous local public officials, and citizens, many of whom had personally looked into the merits of the matter, and expressed a belief in his innocence, and all of whom concurred either in a recommendation that he be reinstated, ot in the assertion that they knew of no reason why he should not be reinstated. It is noteworthy that Vice Chancellor Buchanan, in a letter addressed to this investigating committee of the bar association, said “from the evidence submitted to me, * * * my personal opinion is that he was not guilty of the offense.”

The result was that this committee, after what we deem to be a thorough investigation, unanimously concluded that Wendel “was innocent of the crime for which he was convicted,” and recommended to the bar association that such association “advise the Supreme Court that, in its judgment, the said order of disbarment should be reconsidered, and that it should restore him to the practice of law in the State of New Jersey,” and added that, “with the exception of the charge made against him, of which he was convicted, the moral conduct of Mr. Wendel has never been questioned,” and that since his release from his imprisonment “he has conducted himself in an honorable, straightforward manner, and there is nothing that your committee could learn that would, in the slightest way, be derogatory to his character, or in any way prevent the recommendations that have been made to your committee being carried in full force and effect by the Supreme Court.” That recommendation was unanimously adopted by the bar association at a meeting duly called upon notice that such report was to be considered.

Now, this court is of the opinion that the recommendation of the bar association should be given effect. We reach this conclusion because our consideration of the newlv-discovered evidence satisfies us that Wendel was not guilty of the crime charged against him. It is unnecessary to further discuss the evidence discovered since the trial. It is sufficient to' say that it has produced upon' our minds the result announced. This conclusion is in harmony with, the action of the board of pardons, which had much, if not all, of this newly-discovered evidence before it, and, moreover, is in exact accord with the conclusion of the Vice Chancellor after a painstaking and conscientious investigation.

This case differs from the Harris, ease in this., that there it was not questioned that the applicant had been guilty of the malpractice for which, he was disbarred, and, hence, in view of section 5 of our Practice act, the court declined to restore him to the roll, but did grant, him admission to the examination for license upon his compliance with the rules ; but here the finding is that Wendel, in view of the newly-discovered evidence, was. not guilty of the offense for which he was disbarred, and the order will be that he be restored 'to the roll of attorneys and reinstated as an attorney-at-law.


text:
    SARA WOLFE, TRADING AS WOLFE’S LOAN OFFICE, PLAINTIFF-APPELLANT, v. THE MAYOR AND ALDERMEN OF JERSEY CITY AND LUKE BURKE, PROPERTY CLERK OF JERSEY CITY, DEFENDANTS-RESPONDENTS.
    Decided March 14, 1925.
    •On petition for a rehearing and a reargument and for other relief stated.
    Before Justices Teen chard, Minturh and Lloyd.
    For the petitioner, Herman Lipschitz.

      Contra, Thomas J. Brogan.

   Per Curiam.

The above-mentioned petition having been read and considered the same is hereby denied.


text:
    CHARLES A. SHEPHERST, PROSECUTOR, v. BOROUGH OF AVON-BY-THE-SEA ET AL., DEFENDANTS.
    Submitted January term, 1925
    Decided March 12, 1925.
    Municipalities — Ordinances—Soliciting Orders for Goodsi Without License — Defendant Solicited Orders Which Were Forwarded to Connecticut for Filling and Afterward Delivered by Him — Held, That He was Engaged in Interstate Commerce and Conviction Set Aside.
    Oil certiorari.

    Before Justices Kalisou, Black and Campbell.
    For the prosecutor1, Reilly, Quinn & Parsons.

    For the defendants, Ward Kremer.

   Per Curiam.

The prosecutor is a salesman for the Fuller Brush Company of Hartford, Connecticut. He was convicted for soliciting orders by sample without a license in the borough on the 7th of August, 1924, and fined $25 and costs by the recorder. The ordinance under which the conviction was had provides soliciting agents for any class of goods, wares or merchandise, a license fee each of $15. As stated, the prosecutor solicited an order for brushes, by sample, on August 7th, 1924. The testimony further shows the order for the brushes was then mailed to. Hartford, Connecticut. The order was then filled at Hartford and the brushes mailed by parcel post to the prosecutor at Avon-by-the-Sea, and by him delivered to the customer. The prosecutor files, seven reasons for setting aside the conviction as illegal. They all involve the one point, viz.: The conviction is illegal, because the prosecutor was engaged in interstate commerce. We think the conviction, for this reason, is. illegal, and must be reversed. The case is controlled by our decision in the ease of State v. Coleman, 80 N. J. L. 15. In that case the present Chief J ustice, speaking for this court, said that such a legislative provision is a regulation of interstate commerce is settled beyond dispute. The cases in the United States Supreme Court, so holding, are too numerous for citation. In that case a statute, it is true, was under review, while in this case it is an ordinance, but the controlling facts are- identical and the principle involved the same. More recent cases in the United States Supreme Court to the same effect are Dozier v. State of Alabama, 218 U. S. 124; Crenshaw v. Arkansas, 227 Id. 389.

The judgment of conviction under review is reversed.


text:
    WILLIAM BIMER, RELATOR, v. THE TOWN OF WEST HOBOKEN ET AL., DEFENDANTS.
    Argued March 3, 1925
    Decided March 14, 1925.
    Officers — Title to Position of Member of Municipal Counsel— Action by Application for Mandamus — That Writ Will Not Issue Except Where the Act to be Done is Purely Ministerial and Legal Obligation to Perform is Clear — Quo Warranto Must be Employed to Test Title of Incumbent.
    On rule. On mandamus.

    Before Justices Kalisch, Black and Campbell.
    For the relator, J. Emil Walscheid.

    For the respondents, Abram C. Safyer and Conover. English.

   Per Curiam.

A rule to show cause was allowed why a writ of peremptory mandamus should not issue against the town of West Hobo-ken, the mayor and members of the- board of council to compel them to recognize- the relator, William Bimer, as a member of the board of council from the Third ward of the town of West Hoboken.

The controversy grows out- of the act of the legislature (.Pamph. L. 1923, p. 243) providing for the consolidation of adjoining municipalities- in the- same county.

The relator claims to be- the legal member o-f the board of co-uncilmen from the Third ward, and Abe-1 Bo-zzo claims- to-be such member. Abel Bozzo- has been recognized as such member, hence, the controversy. Bo-zzo- was elected at the general election held November 4th, 1924.

The relator seeks the intervention of this court by its writ of mandamus.

He relies upon the case o-f Leeds v. Atlantic City, 52 N. J. L. 332, to sustain his position. Manifestly, that case does not help him, because the prima facie right o-f the relator to be admitted to the office of sergeant o-f police in Atlantic City was res adjud&cata. His status has been previously determined by the Supreme Court.

The writ of mandamus will not issue except where the act to he done is purely ministerial, .and the legal obligation to perform it is clear. West Jersey Railroad, Co. v. Public Utility Board, 85 N. J. L. 468; affirmed, 87 Id. 170.

The title of an incumbent to- an office will not be directly passed upon by the- Supreme Court except in a quo warranto proceeding brought against the incumbent himself. Bumstead v. Blair, 73 N. J. L. 378. The application for a writ o-f mandamus is refused and the rule to show cause- discharged, with costs.


text:
    CHARLES MURADIAN, ADMINISTRATOR AD PROSEQUENDUM, ETC., PLAINTIFF, v. JOSEPH PAGANESSI, DEFENDANT.
    Decided March 16, 1925.
    Negligencei — Death Act — Deceased’s Brother Dependent Largely Upon Him for Support — There Were Creditors of the Deceased — Judgment of Plaintiff Objected to on the Ground of Its Inadequacy.
    On application of plaintiff for a rule to- show cause why a new trial should not be granted.
    Before Justices Kalisch, Katzenbach and Lloyd.
    For the plaintiff, Gross & Gi'oss.

    For the defendant, McDermott, Enright & Carpenter,

   Per Curiam.

The above action was instituted under the Death act to recover damages for the wrongful killing of Thaddeus George Muradian. The plaintiff, Charles Muradian, as administrator ad prosequendum, was a younger brother of the deceased and the only next of kin. The Muradians were Armenians. The deceased was thirty-seven years- of age at the time of the accident, from which his death resulted. He was engaged in the real estate business in Jersey City. His estate was small. Some three years prior to his death the deceased had brought his youngr brother, Charles, to> this country. For six months after his arrival Charles-, apparently, did nothing, and was supported by his brother. They lived together. A discussion on the subject of religion resulted in their separation temporarily. Charles then became engaged in the gr.ocery business in New York City.

Notwithstanding the difference, the deceased continued to contribute to- the- support of Charles. Some two weeks prior to his death, Thaddeus had arranged with a Dr. West for Charles to be in his office and study to become an eye specialist. Charles obtained from Dr. West $10 a week, which was insufficient fox his support. The balance of the money necessary for his support came from Thaddeus. After the death, of Thaddeus, Charles was obliged to give up his studies- and his position with Dr. West. The contribution made by Thaddeus towards the support- of Charles, according to the testimony of Charles, was, approximately, $30 a week. This was partly in the form of money and partly in the- form of clothes purchased by Thaddeus for Charles, and in room rent and board paid by Thaddeus.

Thaddeus was not married, or engaged to- he married, hut was paying attention, apparently, to a Mrs. M. Mrs. M. was a, creditor of his estate, so that it is- somewhat difficult to determine whether the attentions of Thaddeus were for the purpose of borrowing money or matrimony.

The jury rendered a verdict of $100. Application was made in behalf of the plaintiff to the Circuit Court judge who tried the case for a rule- to' show cause why the verdict should not be set a-side. This application was denied. The application is now presented to- this court. The ground urged is the inadequacy of the damages-. The circumstances of the ease are somewhat unique. -The deceased, from the testimony, appears to have been very generous with his brother for the slender means- which he had. We think, at least, that the plaintiff is entitled to' argue the question of inadequacy of damages before this court.

During the trial of the ease the trial court- permitted the plaintiff to be asked whether or not he did not get all his brother’s life insurance. The question was objected to but was admitted. This would, naturally, have a tendency to decrease the damages. It has been held in numerous cases that it was error in an action for damages for wrongful death to admit evidence of the amount of insurance collected on the life of the deceased. Brabham v. Baltimore and Ohio Railroad Co., 220 Fed. Rep. 35.

The application for a rule to- show cause will be granted, and a rule may be presented to us for allowance.


author: Per Curiam. .

text:
    ALEXANDER O. ZAMBORY v. LOUIS CSIPO.
    Decided March 24, 1925.
    Rehearing — Nothing of Sufficient Materiality to Cause Change of View — Where Nothing Can Be Gained to the Applicant, Neither a New Trial nor Rehearing Will Be Awarded.
    On petition for rehearing.
    Before Justices Trenchard, Minturn and Lloyd.
    Pot the petitioner, Thomas Brown.

   Per Curiam. .

Our consideration of the alleged verbal inaccuracies contained in the opinion filed in tills cause, and alleged'as a basis for a rehearing, has not convinced us that there is anything of sufficient materiality or substance contained therein to change our views as expressed in the opinion upon the legal questions involved, as presented in the facts contained in the briefs.

Where nothing can be gained of benefit to the applicant, neither a new trial nor a rehearing will be awarded. Van Dyke v. Van Dyke, 17 N. J. L. 478.

The petition, therefore, will be denied.


text:
    SILENT SALES VENDING COMPANY v. NIPOLA PRODUCTS COMPANY.
    Argued January term, 1925.
    Decided March 24, 1925.
    Oil rule to show cause.
    Before Justices Trenchard, Min turn and Lloyd.
    Eor the rule, Tabella d Camby.

    Contra, Joseph Beck Tyler.

   Per Curiam.

Our examination of the testimony submitted, as well as the circumstances under which the judgment by default was entered, together with the record of the case, and the law applicable thereto, satisfies us that the judgment should not be disturbed.

The rule to show cause will therefore be discharged, with costs.


author: Caeerey, J.

text:
    Essex County Court of Common Pleas.
    State of New Jersey, respondent, v. Maurice J. F. Baker, appellant.
    Motor Vehicles — Arrest—Warrant or Complaint to be Issued “Forthwith” — Meaning of Forthwith Considered — Fourteen Days Not Within the Meaning' — Penal Statutes Strictly Construed, and Despite Correctness of Court’s Holding of Guilt, It Would be a Strained Construction to Hold That There Had Been a Compliance with the Statute.
    On appeal from tire East Orange police court.

      Mr. Howard Isherwood', for the appellant.

      Mr. Waller O. Ellis, for the respondent.
   Caeerey, J.

The defendant was convicted in the East Orange police court charged with violating subdivision 3 of section 14 of the Motor Vehicle act. P. L. 1921 ch. 208. The findings of fact by the recorder are not challenged.

The error assigned for reversal relates to the method followed, which resulted in the conviction and sentence of the defendant.

The undisputed facts are that on August 30th, 1923, the defendant was arrested in the city of East Orange and detained until the following morning, when he was released on bail by the clerk of the court. No complaint was sworn to until September 11th. The warrant was not issued until the 12th, on which day the defendant was tried, convicted and sentenced.

There are two sections of the act referred to which have a bearing on the arrest and the arraignment, i. e., sections 25 and 31, reading as follows:

“25. (I) Jurisdiction of offenses ; summary hearings; process. — A complaint having been made in writing and duly verified, that any person has violated any of the provisions of this act, any magistrate of the county, or recorder or police magistrate of any municipality, in which the offense is committed may, within thirty days after the commission of said offense, issue either a summons) or a warrant directed to any constable, police officer, the inspector of motor vehicles, or the commissioner of motor vehicles of this state, for the appearance or arrest of the person so charged; and the magistrate shall state wliat section or provision of this act has been violated by the defendant, and the time, place and nature of said violation, and upon the return of said summons or warrant the said magistrate shall proceed, in a summary way, to hear and determine the guilt or innocence of such person, and upon conviction may impose upon the person so convicted the penalty by this act prescribed, together with the costs of prosecution for such offense.
“31. (1) Arrest without warrant; detention of person; hearing. Any constable or police officer, or motor vehicle inspector, or the commissioner of motor vehicles, is hereby authorized to arrest, without warrant any person violating in the presence of such constable or police officer, or motor vehicle inspector, or the commissioner of motor vehicles, any of the provisions of this act, and to bring the defendant before any magistrate of tlie county where such offense is committed. The person so offending shall be detained in the office of the magistrate until the officer making such arrest shall make^oath or affirmation, which he shall do forthwith, declaring that the person under arrest has violated one or more of the provisions of this act, and specifying- the provision or provisions violated, whereupon said magistrate .shall issue a warrant returnable forthwith, and the said magistrate shall proceed summarily to hear or postpone the case as provided in sections 20 and 27 of this act. And any such constable or police officer, or motor vehicle inspector, or the commissioner of motor vehicles, upon satisfying himself that such offender is a resident of this state, may, instead of arresting such offender as herein-above provided, serve upon him a summons in the name of any police court, recorder’s court or other couit, of competent jurisdiction in the county, city, town, township, village, boroug-h or other municipality wherein such officer shall be authorized to discharge his duties, directing such offender to appear and answer such charge or charges as may then and there be referred against him; and for this pxirpose the county, city, town, township, village and borough clex’ks, respectively, shall provide the said officer, or officers, with a form of summons, which, when filled out, executed and issued by the said officer, or officers, in such cases as herein provided, shall be good and effectual according to the purpose and intent thereof.”

Mr. Justice Campbell, speaking for the supreme court, said:

“At common, law all proceedings of a criminal or quasi-criminal nature, except contempts, were required to be initiated by written, complaints.

“This is so, condedely' so, and has always been so- fixedly the practice in this state as not to be open to1 question nor require the citation of any authority for its support. And such woukLtherefore be the requirement-unless, the contrary clearly' appeared by specific legislative authority contained in the act in question. Such is not the case. On the contrary, it appears perfectly plain that the legislative intent and purpose was to require a written complaint in all cases of violation of the act.” Watt v. Wallerius, 2 N. J. Adv. R. 508; see, also, Grauzauskas v. State, 2 N. J. Mis. R. 307.

However, in this case, a warrant and complaint were issued some fourteen days after the arrest, therefore the above citations are not altogether depositive of the matter.

The arrest was made by the police officer without a warrant, and it will be assumed for a violation of the Motor Vehicle act committed in his presence and in keeping with section 31. A careful- reading of this section shows two- methods of procedure — first, one calling for an immediate arrest, as was done here, and second, by the issuance of a summons in the name of a court of competent jurisdiction, when the offender is a resident of this state, directing the defendant’s appearance to answer such charge or charges that may be referred against him.

The facts clearly indicate that the latter method of procedure was not in the mind of the arresting officer. Therefore, of necessity, the following, to- quote again that part of section 31, should ha-ve been adhered to'.- “The person so offending shall be detained in the office of the magistrate until the officer making such arrest shall make oath or affirmation, which he shall do forthwith, declaring that the person under arrest has violated one or more of the- provisions.of this act, and specifying the provision or provisions, violated, whereupon said magistrate shall issue a, warrant returiiable forthwith, and the said magistrate shall proceed summarily to- hear or postpone the ease as provided in sections. 2G and 27 of this act.”'

It is to be observed that the word “forthwith” is used both with reference to the- making of the complaint and the issuance of the warrant. Therefore, we cannot escape the conclusion that the legislature intended that effect to be given to the etymological significance of the word.

This is a panal statute, and, in the language of Mr. Justice Kalisch, “it must be construed strictly. Its scope will not be extended beyond the plain and general meaning of its words.” State Board v. McCloskey, 87 N. J. L. 470.

Mr. Justice Brown, speaking for the United States supreme court, in the matter of Dickerman v. Northern Trust Co., 176 U. S. 193, said that “forthwith has a relative- meaning,” indicating “as soon as by reasonable exertion confined to the object which may be accomplished. In matters of practice and pleading it is usually construed, and sometimes defined, by rule of court, as within twenty-four hours.”

In case of Roumage v. Insurance Co., 13 N. J. L. 110, the supreme- court, in discussing forthwith, with relation to- a, policy of insurance^ said (a,t p. 21):

“First, that notice of the- lire was not given forthwith, but was unreasonably delayed. It happened, in the night between the 10th and 11th, and the written notice was not given till the 17th of the- month. Five entire days' delay was no compliance with the condition, which, by requiring notice forthwith, may be likened to- that of the dishonoring of a note or bill of exchange, notice of which must he given by the mail of the next day. And if it is not given till the sixth day after the fire, the condition was. not performed, and the right was forfeited of having payment for the- loss.”

The courts in many jurisdictions have had occasion to pass upon the meaning of “forthwith” with relation to statutes, contracts, orders and judgments, and while the consensus of opinion is that it does not mean instanter, it does require the doing of an act promptly; within a. reasonable time; with all convenient dispatch; without delay; immediately. See 3 Words & Phr. 2916 et seq.; also 2 Ibid. (2d ser.) 622 et seq.

In the chattel mortgage statute (1 Comp. Slat. p. 463) th? word “immediate” is used with reference to recording mortgages.

Mr. Justice Yan Syckel, in defining this word, said: “It means as soon as may be by reasonable dispatch under the circumstances of the case.” See Roe v. Meding (Court of Errors and Appeals), 53 N. J. Eq. 368; also Bollesweiler v. Packer House Hotel, 83 N. J. Eq. 459; Braden v. Rosenstone, 83 N. J. Law 253. -These cases are pertinent, not only because there is a strong analogy between the words “forthwith” and “immediately,” both seemingly to- convey the thought of action by reasonable dispatch, but also as indicating the strict observance by the court to the language used by the legislature. The word “forthwith” in the instant case has a definite significance, unlike the reference by Chief-Justice Beasley in McEntie v. Sandford, 42 N. J. Law 263.

It seems to- me that these specific words, read in the light of both sections 26 and 31, cannot be looked at as something immaterial, but, on the contrary, a matter of substance, mandatory, and rendering illegal a proceeding done without due regard to- their effect and meaning.

There was no waiver of his rights by the defendant in the court below, because at the hearing in the recorder’s court a dismissal of the proceedings were urged on the grounds raised here. Nor can his release on bail, the- day after his arrest, militate against him. Section 26 of the act provides for this method of release without limiting the application of section 31.

Under the circumstances, despite the correctness of the holding of the magistrate as to the defendant’s guilt under subdivision 3, section 14, I believe it- would be a strained construction to say that there was a compliance with the statute, and to hold that the requirements of “forthwith” were not by the doing of an act fourteen days after the occasion arose.


author: Pee Curiam.

text:
    ANNA MANNING, RELATOR, v. FRANK HAGUE ET AL., BOARD OF COMMISSIONERS OF JERSEY CITY, AND JOHN SAUL, SUPERINTENDENT OF BUILDINGS OF JERSEY CITY, RESPONDENTS.
    Submitted February 5, 1925
    Decided March 26, 1925.
    Municipalities — Zoning—Ordinance to Restrict Use of Inflammable Buildings — Building to be of Wood to be Used for Commercial Purposes — Ordinance Holding Such Use Unlawful, Valid — Building Not Prohibited Under Zoning Ordinance, But is Prohibited Under Fire Hazard Ordinance.
    On rule to show cause for mandamus.

    Before Justices Kalisch, Black and Campbell.
    Eor the relator, Warren Dixon.

    For the respondents, Thomas J. Brogan.

   Pee Curiam.

The relator is the owner of property known as 107 Tonnele avenue, Jersey City. The building thereon is a two-story frame dwelling-house, which relator desires to alter and coni vert into a store on the first floor and living apartments above. Having made an application for a permit to make such alterations, and the same below denied, she has obtained a rule to show cause why an alternative or peremptory writ of mandamus should not issue to compel the issuance of such permit to her.

The relator employed one George Flagg, an architect, to* prepare sketches of the proposed alterations, and make the necessary application for a building permit. He testifies he prepared three applications, with sketches, and filed the same with the zoning commission, the commission of buildings and restrictions. That these applications were later returned to him stamped “rejected under section 2, October 6th, 1924, II. A. Lewis, secretary.” Said Lewis was secretary of the zoning board. Elagg further testified that thereafter he filed two other applications with the building department “which was intended to go before the commissioners at their regular meeting.” That, subsequently, upon inquiry, he was advised such application was rejected, and that thereafter Elagg and counsel for relator appeared before the board of commissioners of Jersey City, and the matter was there presented and argued, and the action of the building department upheld.

The contention' of respondents is that the applications above referred to and testified to were made first to the zoning commission and rejected because relator sought to convert her building into a commercial use in a residential district in violation of the zoning ordinance, and, second, an appeal was taken from this action of the zoning commission to the board of commissioners, and the action of the zoning board was sustained. That no application was ever made to the building department as required by an ordinance entitled “An ordinance to amend an ordinance entitled ‘The Building Code/” passed September 17th, 1907, and approved October 1st, 1907.

In support of this Thomas Duff, custodian of the records of the building department, testifies that the files of the department contain no such application for the premises in* question.

It appears, therefore, that application was made to the zoning, commission and refused, and appeal therefrom to the board of commissioners resulted in an affirmance of such refusal.

If these were all the matters requiring our consideration It might well be that the situation would be controlled by Ignaciunas v. Risley, 2 N. J. Adv. R. 852.

But we have the amendment to the building code above referred to. This recites that “by reason of. the use of frame buildings for mercantile and commercial purposes * * * fire hazard in Jersey City has increased, and it has been determined by, and is, the opinion of the board of commissioners that the use of frame buildings for all purposes other than residences and living apartments shall be discontinued so as to minimize the danger of damage by fire.”

Section 2 of the ordinance provides: “No existing frame building or any part of same now used as a residence or living apartment shall hereafter be converted to any other use unless a permit therefor shall be obtained in the manner hereinafter stated.”

Section 3. “Any extensions or additions hereafter erected to any such building shall not be used for any other purpose than a residence or living apartment, unless a permit therefor shall bo obtained in the manner hereinafter stated.”

Section I then provides that when a permit is desired under any of the foregoing sections, application therefor by petition in duplicate shall be filed with the superintendent of buildings, stating generally what is proposed to be done with such building and the use to which it is to be put. Such petition shall be accompanied by a sketch or blue print in triplicate showing height and size of buildings proposed to be constructed or altered.

The superintendent of buildings is thereupon required to cause an investigation to be made of the nature and character of adjoining buildings, of the buildings in the neighborhood and the nses to which snch buildings arc being put. The result of such investigation shall be put In writing and filed with the board of commissioners together with a copy of the application and a copy of the sketch or drawing. The city clerk shall thereupon publish notice of a hearing of the board of commissioners upon such application.

Upon such hearing the application shall be either approved or disapproved. If approved, then the superintendent of buildings shall issue a permit, and if disapproved no permit shall issue.

Eelator attacks this ordinance in two directions: First. Because the authority for its adoption is Pamph. L. 1902, p. 180 (1 Comp. Stat.; p. 654, § 242), which was repealed by the Home Rule act. Pamph. L. 1917, p. 317 (at p. 354). But the complete answer to this is that this same Home Rule act (Pampa. L. 1917, p. 345, art. 10, § 2) provides that “all ordinances in effect in any municipality at the time of the passage of this act shall remain in full force and effect notwithstanding the passage hereof, except in so far as they are inconsistent with the provisions hereof, until they are amended, altered or repealed by the governing body of such municipality.” There has not been pointed out nor do we find any inconsistency which would nullify the ordinance in question.

Second. If valid, yet the ordinance is unreasonable and in defiance of the property rights of the relator.

With this we do not agree, but, on the contrary, we are of the opinion that the ordinance was a valid and reasonable exercise of the police power of the city in the interests of public safety in protection against fire and the reduction of fire hazard.

We conclude that the writ of mandamus must be denied and the rule to show cause dismissed for two reasons — first, because the ordinance above referred to as the amendment to the building code is applicable, and is an existing, valid and legal municipal regulation, and, second, because it does not appear the proper application was made under such ordinance.


author: Per Ctjriam.

text:
    GASPER FALCO AND SALVATORE CORSELLO, RELATORS, v. WILLIAM T. KALTENBACH, INSPECTOR OF BUILDINGS, ETC., AND THE CITY OF ELIZABETH, RESPONDENTS.
    Submitted January term, 1925
    Decided March 26, 1925.
    Municipalities — Zoning—Mandamus to Compel Building Permit— Defense That Certiorari is Proper Remedy — Writ is Not to Review Proceedings of Statutory Tribunal, But to Compei Official to Perform an Administrative Act — Facts in Case Makes Finding in Ignaciunas v. Risiley Case Controlling.
    On rule for mandamus.

    Before Justices Katusch, Black and Campbell.
    For the relators, David 8. Feinswog.

    For tlie respondents, Joseph T. Hague.

   Per Ctjriam.

The stipulated facts are that relators are the owners of land in the city of Elizabeth, fronting thirty-four feet on Monroe avenue and one hundred and fifteen feet in depth along Louisa street, on which there has been for three years a frame dwelling, two and one-half stories high, with two stores facing Monroe avenue and one facing Louisa street.

Relators acquired said property August 31st, 1921, and there are no restrictive covenants in anywise affecting the use of said lands. That said lands are embraced In “Residence B” district of the zoning ordinance of Elizabeth. Since the erection of the building on said premises there has been in said building three stores — a tailor shop and pharmacy bn Monroe avenue and a barber shop on Louisa street. On July 11th, 1924, relators made application to William T. Kaltenbach, building inspector of the city of Elizabeth, for a permit to add an extension to said building at the rear thereof, facing on Louisa street, for the purpose of enlarging a store. Tlie said application was in proper form, accompanied by plans and specifications in all respects complying with the regulations of the building departments of the city, and not in conflict with any laws of the state, and a proper fee was tendered for the issuing of the permit. On August 6th, the building inspector- refused to issue the permit on the ground that the contemplated extension of the building on Louisa street was in violation of the zoning ordinance, the lands being in “Residence B District,” in which stores are not permitted. Relators then appealed to the board of adjustment of the city, created under Pamph L. 1924, p. 324, and that board, after a hearing, affirmed the decision of the building inspector not to issue the permit. Relators then applied for and obtained the present rule to show cause why an alternative or peremptory writ of mandamus should not issue, requiring the building inspector to issue the permit as applied for by relators.

In opposition to this rule, counsel for respondents urged two reasons only.

1. Certiorari is the proper remedy to be pursued, and that should be directed to a review of the determination of the board of adjustment.

But such a procedure would accomplish nothing and be unavailing. Biddle v. Commissioner of Banking, 100 Atl. Rep. 692.

2. Mandamus is not the proper remedy to review the proceedings of a statutory tribunal.

The answer to this is that the present proceeding does not contemplate a review of the action and proceedings of the board of adjustment, but seeks the assistance of this court’s prerogative writ to compel the building inspector to- perform an administrative act which it is asserted he, in law and fact, should have performed, namely, issue the permit applied for.

"The fact that another remedy may exist for reaching the evil complained of will not avail to prevent the resort of mandamus unless such other remedy is specific and adequate * * Lay v. Hoboken, 75 N. J. L. 315, and cases therein cited.

We have already pointed out that certiorari is unavailing and inadequate, therefore, resort to mandamus is proper.

We think the facts in this case makes the finding in Ignaciunas v. Risley, 98 N. J. L. 712, controlling.

As all the facts are before us upon argued stipulation, no advantage or benefit can arise in the allowance of an alternative writ and therefore a peremptory writ of mandamus may issue, with leave to apply for a molding of pleadings in the event that an appeal is desired.


text:
    CHARLES H. INGERSOLL, RELATOR, v. VILLAGE OF SOUTH ORANGE ET AL., RESPONDENTS.
    Submitted January term, 1925
    Decided March 26, 1925
    Municipalities — Zoning—Apartmentrhouse—Alleged Inadequacy of Fire Protection as a Reason for Refusal of Permit; — Case Otherwise Under Ignaciunas v. Risley Ruling — Duty of Municipality to Supply Reasonably Proper and Adequate Protection — Peremptory Writ Issued, and Leave to Mold Pleadings in Event of Appeal.
    On alternative writ of mandamus.

    Before Justices Kalisch, Black and Campbell.
    For the relator, Edward Ij. Davis.

    For the respondents, Thomas E. Fitzsimmons.

   Pee Curiam.

This matter was previously before this court upon a rule to show cause why an alternative or peremptory writ of mandamus should not issue. Ingersoll v. South Orange et al., 2 N. J. Misc. R. 882. Therein this court held that the case fell within the principle of the Nutley ease (Ignaciunas v. Risley, 98 N. J. L. 712); Handy v. South Orange, 118 Atl. Rep. 838, and Vernon v. Westfield, 1 N. J. Adv. R. 1031, and other cases, and “upon the reasoning underlying those cases we think the ordinance was outside of the powers conferred by the Zoning act, under the principle of the Nutley case, as decided in the Supreme Court, the act in question, in so far as it undertakes to limit the use of the land as to this, is unconstitutional. Ordinarily, this conclusion would justify the allowance of a peremptory writ and so conclude the case. The case, however, contains the following stipulation :

“It is admitted that the authorities would testify that the village has not sufficient fire facilities to adequately take care of apartment-houses in the event of fire. .It is further admitted, however, that there are at the present time three apartment-houses existing in the said village which were constructed before the so-called Zoning law was passed by the state legislature.”

The introduction of this provision, presenting a situation of public necessity upon which it is argued the inherent police power of the municipality for the general welfare may be invoked as a super-added power to the legislative zoning concession, injects into the case a new municipal feature, which up to this period has not received the consideration of the appellate court. For that reason we have concluded to allow an alternative writ of mandamus. For that purpose the pleadings may be so framed as to present the inquiry raised by this stipulation, upon appeal.”

An alternative writ of mandamus issued and was served. There seems to have been no formal return, demurrer or other formal pleading according to the established practice relating to alternative writs of mandamus. In lien of a return there is an “agreed state of facts” and a return of testimony taken. We assume that we should deal with the matter as if proper and orderly pleadings had been filed.

A consideration of the matter leads us to the same conclusion as reached by the justices who sat in the proceeding upon rule to show cause, and whose conclusions are reported in 2 Ah J. Misc. B. 882, supra, that aside from the question if insufficient fire protection the matter is controlled by Ignaciunas v. Risley, supra.

Upon the question of the lack of fire-fighting forces and inability to secure firemen to supplement and increase the present strength of that municipal department as a justification for the prohibition in the zoning ordinance against the erection of apartment-houses we are inclined to look with disfavor.

We think it is a plain duty resting upon the municipal authorities of the village to furnish and provide to its inhabitants reasonably proper and adequate fire protection. We think it would be unreasonable to hold that the adequacy of such a depaitment should he maintained by restricting building and construction, but that, on the contrary, such adequacy should he maintained and keep step with increases in buildings and resulting increase of fire hazards by increasing and enlarging the fire department in men, apparatus and efficiency.

We conclude, therefore, that a peremptoiy writ of mandamus issue. Leave to mold the pleadings in case of an appeal may he had if the pleadings as now before us are considered insufficient to permit an appeal.


author: Pee Gubia m.

text:
    THE STATE OF NEW JERSEY, EX REL. HENRY BECKER AND SON, INCORPORATED, RELATOR, v. THOMAS J. DOWLING, INSPECTOR OF BUILDINGS OF THE CITY OF ORANGE, AND THE BOARD OF ADJUSTMENT OF THE CITY OF ORANGE, RESPONDENTS.
    Submitted January term, 1925
    Decided March 26, 1925.
    Municipalities — Zoning—Erection of Large Horse Stable, Wagon Storage. Garage and Office Building in Residence “B" District — City Under Police Power May Regulate Erection of Stables, Provided Regulation is Reasonable and for Protection of Health, Safety and Public Welfare — Facts Before Court do Not Justify Application of Prohibitive Term of Ordinance — As Facts are Before Court by Stipulation, Peremptory Writ Will issue With Privilege to Mold Pleadings in Event of Appeal.
    On rule for mandamus.

    Before Justices Kalisoh, Black and Campbell.
    For the relator, Arthur B. Seymour.

    For the respondents, William A. Calhoun.

   Pee Gubia m.

This matter is before us upon a rule to show cause why a peremptory or alternative writ of mandamus should not issue commanding the respondent Dowling, as inspector of buildings, to issue to the relator a permit to erect a horse stable, wagon storage and office building. The facts are before us by stipulation and they are that relator is the owner of lands on the west side of South Jefferson avenue, Orange, such lands having a frontage of two hundred and seventy-four and one-half feet on such avenue, a depth on the southerly side of one hundred and thirty-one feet, a width in -the rear of three hundred and eight feet, and'a depth on the northerly side of one hundred and eighty-three (183) feet. On November 3d, 19.21, application was made by relator to the Inspector of buildings of Orange for a permit to erect a building on such lands for use as a horse stable, storage of wagons, office building and garage; that with such application plans and specifications were filed providing for the erection of a one-story brick building with a frontage of two hundred and twenty-five (225) feet on South Jefferson street, containing stalls for fiftj'-four (54) horses, a large storage room for wagons, an office for drivers of wagons and a small garage. Such plans and specifications complied with the building code and all other ordinances relating to the material and manner of consti action of a building of the type for which the permit was applied. The inspector of buildings refused to grant a permit because the zoning ordinance of the city of Orange prohibited the erection óf a business stable upon relator’s property.

Part of the building, if erected, would be within one hunInuidred (100) feet of South Jefferson street, in “Residence B” zone and part in the business zone as fixed by the zoning ordinance.

In neither of these districts is it permitted by the zoning ordinance to erect a stable to be used for business purposes.

There exists in the city of Orange, pursuant to the terms of V. L. 1921, ch. 146, a board of adjustment and relator appealed from the decision of the building inspector to that hoard, and which hoard on November 28th, 1924, denied the appeal. Relator purchased the premises in question June 5th, 1924, and at this time they consisted of a vacant lot. Immediately opposite and facing on the east side of South Jefferson street are eight frame dwelling-houses. The lands adjoining on the west and north are used for business purposes.

The annual rates for fire insurance on South Jefferson street are: frame dwelling, eighteen and one-half cents per $100; brick dwellings, thirteen cents, and brick stables, ninety-one cents.

' Belabor is in the retail milk business on a large scale and operates approximately fifty (50) horse-drawn wagons. It is the practice for these wagons to leave the stable between one-thirty and four in the morning, proceeding to a railroad siding from which the bottled milk is loaded into the wagons for delivery and returning after such deliveries to the stable between ten a. m.. and two n. M.

Upon these facts the respondents resist the granting of a writ of mandamus for two reasons:

First. Because certiorari is the appropriate remedy to review the decision of the board of adjustment.

Our answer to this is that certiorari would avail nothing. Biddle v. Commissioner of Banking and, Insurance, 100 Atl. Rep. 692. We have so held in Union County Development Company v. Kaltenbach, Inspector, &c., 208, of the present term.

Second. The cityr, under its police power, may regulate and restrict the erection of stables.

It may be conceded that such power does reside in the city, provided to be shown that the regulation, restriction or prohibition is reasonable and is called for to protect the public health, safety and general welfare. But the power extends no further and a regulation, restriction or prohibition exceeding the foregoing is unreasonable. Ignaciunas v. Risley, 98 N. J. L. 712.

The facts before us do not justify the application of the prohibitive tefrms and requirements of the ordinance in question.

As all the facts are before us by stipulation no advantage or benefit can arise in awarding an alternative writ. A peremptory writ may therefore issue, with the privilege of applying for an order molding the pleadings, provided an appeal is to be taken.


author: Pee Ciipjav.

text:
    UNION COUNTY DEVELOPMENT COMPANY, RELATOR, v. WILLIAM T. KALTENBACH, BUILDING INSPECTOR OF THE CITY OF ELIZABETH.
    Submitted February 5, 1925
    Decided March 26, 1925.
    Municipalities — Zoning—Application Rejected by Building Inspector and Action Affirmed by Board of Zoning Adjustment— Evidence Examined and Case Falls. Under Ignaciunas v. Risley Case — Peremptory Writ Awarded with Privilege to Mould Pleading in Case of Appeal.
    On rule to show cause for mandamus.

    Before Justices Kaijscii, Black and Campbell.
    Eor the relator, Stamler, Stamler & Koesiler.

    Tor the respondent, Joseph T. Hague.

   Pee Ciipjav.

The relator is the owner of premises known as No. 1038 North avenue, Elizabeth, being a. vacant lot at the corner of North and Jackson avenues.

Belator’s deed and no deed in the chain of title to relators contains any restrictive covenants against any use to which the land may be put.

On September 8th, 1924, the relator, upon a. blank furnished by the building inspector, did give- a specification of a new building to be erected upon said premises, designating it as a, frame building, seventy-five feet by twenty-two- feet, having a peaked, shingle roof, and to consist of apartments for two families, and three stores, and presented therewith formal plans of the building showing the layout of the first floor for a store on the corner fronting on North avenue, and two stores fronting on Jackson avenue, and the layout of the second floor for two- families. Bela,to-r offered to- pay the required fee for a, permit for the erection of such building. ' The building proposed, complied with all rules and regulations of the building department and the building code. The building inspector refused to grant the permit upon the ground that to'do so would violate the zoning ordinance of the city of Elizabeth.

The premises of relator is within Residence “B” District as defined in such ordinance, and therein stores, are prohibited, and likewise dwellings, except “a dwelling for one family or for one house-keeping unit only.”

Thereupon, relator appealed from such decision of the building inspector to the board of zoning adjustment, and such board fixed October 14th, 1924, for the hearing of such appeal. Said hearing was held, and the board refused relator’s petition for a permit to erect said building, and on October 15th, 1924, caused its secretary to notify relator, in writing, that his appeal to erect stores upon the premises was denied.

Relator’s property is on the southeast corner of North and Jackson avenues, and in the neighborhood of the property the blocks on North avenue are three hundred feet in length. On the southwest comer of North avenue and Van Burén avenue, which is one block east of the premises in question, there is a building containing a store, and on the northwest corner of North and Jackson avenues there is also a building containing a store. On the northeast comer of North and Monroe avenues, two blocks west of the premises in question, there are two buildings each containing a store.

Relator is also the owner of premises adjoining the premises in question, upon which is a building containing a store and also a building used as a. bakery. All the foregoing stores and structures were constructed prior to the adoption of the zoning ordinance, and all of such buildings are within the same zone as the premises in question.

On November 8th, 1924, relator applied for and a rule to' show cause why a peremptory or alternative writ of mandamus should not issue was allowed returnable at the opening day of the present term of this court.

The contention of relator is that there is nothing before the court to show the building of the character contemplated to be against public health, safety or public welfare.

In this we agree with relator, and the matter before us is controlled by Ignaciunas v. Risley, 1 N. J. Adv. R. 1023.

The respondent contends that certiorari, not mandamus, is the proper remedy.

We think not. Certiorari will accomplish nothing in the case before ns. There is nothing to be reviewed. Biddle v. Commissioner of Banking, 100 Atl. Rep. 692.

As_ all the facts are before ns as fully as under an alternative writ of mandamus, a peremptory writ is awarded, with privilege to apply for a molding of the pleadings if an appeal is desired.