Freeman v. Hague

• Decision Date: 14 October 1929
• Docket Number: No. 54.,54.
• Citation: 147 A. 553
• Parties: FREEMAN v. HAGUE et al.
• Court: New Jersey Supreme Court

147 A. 553

FREEMAN

v. HAGUE et al.

No. 54.

Court of Errors and Appeals of New Jersey.

Oct. 14, 1929.

The Chancellor, the Chief Justice, Justice Trenchard, and Judges Van Buskirk, McGlennon, and Hetfield, dissenting.

Appeal from Supreme Court.

Certiorari by Saline Freeman against Frank Hague and others, Board of Commissioners of the City of Jersey City and another, to review an order of the Board revoking permit for erection of garage. The order was affirmed by the Supreme Court (144 A. 328, 7 N. J. Misc. R. 41), and plaintiff appeals. Reversed and rendered.

Richard Doherty, of Jersey City, for appellant.

Thomas J. Brogan and Frank J. Reardon, both of Jersey City, for respondents.

KALISCH, J. The prosecutrix-appellant, under an ordinance of Jersey City, entitled "An ordinance to regulate the erection and alteration of all buildings and structures to be used or designed to be used for any purpose other than as residences or for living apartments," on November 26th, 1927, made application to the board of commissioners, as required by the ordinance, for a permit to erect a brick garage for five pleasure cars. On December 13, 1927, the board of commissioners, through its mayor, granted the appellant's application as follows: "Saline Freeman, to erect one brick garage for five pleasure cars, 50'x20'xl0 feet high, 127 Clerk Street, Lot 22, Block 2011. Present two story frame garage to be razed." On January 17, 1928, the superintendent of buildings, acting upon the recommendation, granted to the prosecutrix-appellant a permit, which reads as follows: "Application having been made to me by Saline Freeman for permission to erect 1-1 story brick garage, size 50'x20'x10' 2" high; ply slag roof as per plans filed. 127 Clerk Street."

At a meeting of the board of commissioners on April 10, 1928, the. board passed a resolution revoking the permit. The resolution recites, among other things, the following: "Whereas, the investigation of this Commission discloses the fact that a permit for the erection of said garage was erroneously granted in violation of an ordinance, entitled, 'An Ordinance to regulate the erection and alteration of buildings or structures to be used or designed to be used for any purpose other than as residences or for living apartments,' passed June 3, 1924, and,

"Whereas, said investigation further discloses, that said garage, if built, would be in violation of the zoning ordinance of Jersey City, in that said garage would be located within 150 feet of a church,

"Resolved, that the permit heretofore issued by the Building Department of Jersey City for the erection of said garage at Nos. 125-137 Clerk Street, and the same is hereby rescinded, and for nothing holden."

The prosecutrix sued out of the Supreme Court a writ of certiorari directed to the board of commissioners and the superintendent of buildings for a review of the legal propriety of the action of the board in passing the resolution, revoking the permit.

Testimony was taken in the certiorari proceedings and the cause came on to be heard by the Supreme Court, which tribunal gave judgment (144 A. 328, 7 N. J. Misc. R. 41) affirming the action of the board, which judgment is now before us for review.

The Supreme Court practically found that the...