E. Boulevard Corp. v. Bd. of Comm'rs of Town of W. N.Y.

• Decision Date: 27 March 1940
• Docket Number: No. 2.,2.
• Citation: 11 A.2d 832,124 N.J.L. 345
• Parties: EASTERN BOULEVARD CORPORATION v. BOARD OF COMMISSIONERS OF TOWN OF WEST NEW YORK et al.
• Court: New Jersey Supreme Court

11 A.2d 832

124 N.J.L. 345

EASTERN BOULEVARD CORPORATION

v. BOARD OF COMMISSIONERS OF TOWN OF WEST NEW YORK et al.

No. 2.

Supreme Court of New Jersey.

March 27, 1940.

Original mandamus proceeding by the Eastern Boulevard Corporation, a New Jersey corporation, against the Board of Commissioners of the Town of West New York, and George Willaredt, Building Inspector of the Town of West New York.

Alternative writ dismissed.

Argued January term, 1940, before BODINE and PERSKIE, JJ.

Fred Goldstein, of West New York, for relator.

Irwin Rubenstein, of West New York, for respondents.

PERSKIE, Justice.

This cause is before us on the return of an alternative writ of mandamus. Relator seeks to compel the building inspector of the Town of West New York to issue to it a permit to erect a five-story apartment house on its premises.

The record submitted is much the same as was the record before the Court of Errors and Appeals in a reeent case involving the identical parties and a substantially similar issue. See Eastern Boulevard Corp. v. Willaredt, 123 N.J.L. 269, 8 A.2d 688. It will accordingly suffice to observe, so far as this case is concerned, that in opposition to the allowance of a peremptory writ respondents rely upon an amendment to the zoning ordinance of the Town of West New York which amendment has been held by the Court of Errors and Appeals to be "applicable to the relator's case, and * * * if properly adopted and reasonable, a bar to the issuance of a permit and a writ of mandamus." Eastern Boulevard Corp. v. Willaredt, supra, 123 N.J.L. at page 272, 8 A.2d at page 689. Relator on the other hand urges that the amending ordinance is unreasonable, unconstitutional and void, and thus not a bar to the allowance of a peremptory writ.

We do not find it necessary to express any opinion, nor are we to be construed as so doing, on the question of the reasonableness of the ordinance in question. For we are entirely satisfied that a peremptory writ should not be granted.

It is axiomatic that mandamus will not lie unless, inter alia, the right to the writ is clear both in fact and in law. Jacobs v. Elwell, 151 A. 61, 8 N.J.Misc. 495; Hoffmeir v. Union City, 134 A. 610, 4 N.J.Misc. 839; Bimer v. West Hoboken, 128 A. 153, 3 N.J.Misc. 318; Rosenbaum v. Butler, 128 A. 578, 3 N.J.Misc. 424; Troy v. Barnitt, 165 A. 576, 11 N.J.Misc. 275; Edell v. McDermott, 165 A. 719, 11 N.J. Misc. 272, 275; Cooper v. State Board of Veterinary Medical Examiners, 114 N.J.L. 10, 175 A. 207, affirmed 115 N.J.L. 115, 178 A. 748; Ziegler v. City Manager &c. Hackensack, 115 N.J.L. 328, 180 A. 225; Yedid v. Atlantic City, 182 A. 817, 14 N.J. Misc. 124; Jones v. Orlando, 119 N.J.L. 227, 195 A. 717; Provident Institution for Savings v. Castles, 124 N.J.L. 50, 11 A.2d 64. And in view of the existence of an amending ordinance before us which as already indicated has been found by the Court of Errors and Appeals to be a bar, if reasonable, to the relief presently sought, it is manifest that relator's right to that relief is not clear unless and until the ordinance in question is...