Lipkin v. Duffy, 242.
| Decision Date | 15 April 1937 |
| Docket Number | No. 242.,242. |
| Citation | 191 A. 288 |
| Parties | LIPKIN v. DUFFY et al. |
| Court | New Jersey Supreme Court |
Benjamin Lipkin was convicted of violating an ordinance and he brings certiorari against Vincent C. Duffy, recorder, and the city of Paterson.
Writ dismissed.
Argued October term, 1936, before PARKER and LLOYD, JJ.
Mendelsohn & Mendelsohn, of Paterson, for prosecutor. Charles F. Lynch and Salvatore D. Viviano, both of Paterson, and Frederick C. Vonhof, of Newark, for respondents.
The writ in this case brings up the conviction of the prosecutor, a citizen of New York, for violating an ordinance prohibiting the maintenance of a junk yard in the city of Paterson without a license being first obtained therefor, together with the ordinance upon which the conviction was based.
The ordinance and conviction based thereon are claimed to be invalid because by its terms the ordinance exacts that no person not a citizen of the United States and a resident of the city for two years next preceding the application for license shall be licensed.
The ordinance is both unreasonable and discriminatory under our cases in so far as it excludes nonresidents from license. Westfield v. Stein, 113 N.J.Law, 1, 172 A. 522, and cases there cited.
But this does not avail the prosecutor to have the conviction set aside. His remedy was by mandamus to compel the consideration of his application for a license subject to the lawful features of the ordinance, but without regard to the illegal provision of nonresidence contained therein; and not to attempt to maintain a junk yard in violation of the valid portions of the ordinance without the issue of any license whatever. Fields v. Duffy, 115 N.J.Law, 319, 180 A. 225.
The writ is dismissed with costs.
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...a petition for mandamus if the board refused to consider it, * * *.' The same principle of law is clearly stated in Lipkin v. Duffy, 118 N.J.L. 84, 191 A. 288, the headnote of which is as follows: 'The provision of an ordinance that a license to carry on the business of conducting a junk ya......
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Lipkin v. Duffy
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