Contras v. Mayor and Aldermen of Jersey City

• Decision Date: 30 December 1926
• Docket Number: No. 77.,77.
• Citation: 135 A. 472
• Parties: CONTRAS v. MAYOR AND ALDERMEN OF JERSEY CITY et al.
• Court: New Jersey Supreme Court

135 A. 472

CONTRAS

v. MAYOR AND ALDERMEN OF JERSEY CITY et al.

No. 77.

Supreme Court of New Jersey.

Dec. 30, 1926.

Application by Joseph Contras for writ of mandamus, to be directed to the Mayor and Aldermen of Jersey City and others. On demurrer to return. Peremptory writ refused.

See, also, 134 A. 122.

Argued October term, 1926, before the CHIEF JUSTICE and TRENCHARD and MINTURN, JJ.

John Milton, of Jersey City, for relator.

Thomas J. Brogan, of Jersey City, opposed.

PER CURIAM. The relator is the owner of property on St. Pauls avenue, in Jersey City, the tract being 75 feet front and 100 feet deep. On it there is erected a one-story frame shed, which he had been using as a combination stable and garage in connection with his business. He applied to the building commission for authority to remove the shed, and to erect upon the property a one-story public garage. This application was denied by the commission, and he then appealed to the board of commissioners of Jersey City, who sustained the refusal. Thereupon he applied for and obtained an alternative writ of mandamus.

In the return to the writ the defendants justified the action of the board of commissioners "upon the ground that the erection of the contemplated garage by the relator will increase the tire hazard in the locality where the building is proposed to be erected or alteration made." The relator demurred to this return, stating that he did not admit the truth of the allegations contained therein, but asserting that they are insufficient in law to justify the defendants in refusing to grant the permit.

The statement in the demurrer that the relator does not admit the truth of the facts alleged ought not to be considered, since the very function of the demurrer is to determine whether the facts set forth in the pleading demurred to afford legal justification for the action of the parties against whom the demurrer is filed. If the relator desired to controvert the facts set out in the return, it was incumbent upon him to file a replication thereto, and thus present an issue of fact to be determined by testimony pro and con, under the familiar rules of common-law pleading. 22 R. C. L. 712,' and cases; Bonynge v. Frank, 89 N. J. Law, 240, 98 A. 456, Ann. Cas. 1918D, 211.

Assuming, as we must in the present state of the pleadings, that the erection of of the contemplated building would tend to increase the fire hazard to the detriment of the community, we think that the refusal to...