Frank J. Durkin Lumber Co. v. Fitzsimmons
| Decision Date | 30 November 1928 |
| Docket Number | No. 229.,229. |
| Citation | 143 A. 816 |
| Parties | FRANK J. DURKIN LUMBER CO. v. FITZSIMMONS, Recorder, et al. |
| Court | New Jersey Supreme Court |
viction for violation thereof has burden to show its unreasonableness.
Proceeding by George Fitzsimmons, Recorder of Belleville, and others, against the Frank J. Durkin Lumber Company for violation of an ordinance. From a judgment of conviction, defendant brings certiorari. Affirmed.
Argued October term, 1928, before MINTURN, BLACK, and CAMPBELL, JJ.
John Larkin Hughes and Merritt Lane, both of Newark, for prosecutor.
John B. Brown, of Newark, for defendants.
The writ of certiorari was allowed in this case, to review the judgment of conviction of the prosecutor, for the violation of certain provisions of an ordinance of the town of Belleville, known as the zoning ordinance, adopted September 3. 1923. The prosecutor files nineteen reasons for setting aside the judgment of conviction. The reasons are argued under five heads in the prosecutor's brief.
The complaint charged the prosecutor with maintaining on the premises on the southerly side of John street in the town of Belleville a lumber pile or building material storage yard, which it used in connection with its lumber business carried on in another part of the premises, located in the town of Bloomfield, and that the maintenance of such a lumber pile and use thereof was the use of the premises as "a building material storage yard," within the meaning of section 14 of the ordinance.
That section required a "certificate of occupancy." It provides: "No land shall be occupied or used and no building," etc., "occupied or used in whole or in part for any purpose whatsoever until a certificate of occupancy shall have been issued by the Superintendent of Buildings stating that the premises or building complies with all the provisions of the ordinance." No building or premises may be occupied until such certificate shall have been issued. The prosecutor was convicted by the recorder of Belleville of violating the ordinance on the 1st, 7th, 12th, 16th, and 19th days of March, 1928, for not obtaining a certificate of occupancy, as required by the ordinance.
Eight reasons filed by the prosecutor for setting aside the conviction under the ordinance are the ordinance or the conviction thereunder is in violation of the Constitution of the United States or the Constitution of New Jersey or both. Not so. We have read the argument made on behalf of the prosecutor on this...
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Frank J. Durkin Lumber Co. v. Fitzsimmons
...the Frank J. Durkin Lumber Company, for violation of an ordinance. Judgment of conviction was affirmed in the Supreme Court (6 N. J. Misc. Rep. 1102, 143 A. 816), and defendant appeals. John Larkin Hughes and Merritt Lane, both of Newark, for appellant. John B. Brown, of Newark, for respond......
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Lipkin v. Duffy
...with respect to the penalty imposed, and therefore the conviction could be set aside on certiorari. In Frank J. Durkin Lumber Company v. Fitzsimmons, 143 A. 816, 6 N.J.Misc. 1102, the Supreme Court on certiorari sustained the conviction of the lumber company for a violation of a zoning ordi......
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