Potter v. Weleck, 227.
| Decision Date | 31 January 1944 |
| Docket Number | No. 227.,227. |
| Parties | POTTER v. WELECK et al. |
| Court | New Jersey Supreme Court |
OPINION TEXT STARTS HERE
Certiorari proceeding by Eleanor A. Potter against William W. Weleck, Jr., Recorder, and the Board of Health, and the Mayor and Council of the Borough of Hillsdale, to review prosecutor's conviction for violations of an ordinance requiring owner of multiple dwelling to maintain a certain heat therein.
Conviction vacated and set aside.
October term, 1943, before CASE, DONGES, and PORTER, JJ.
Arnold A. Hart, of Hackensack (George F. Losche, of Hackensack, of counsel), for prosecutor.
George W. Babcock, of Hackensack, for respondents.
This writ brings before us for review the conviction of the prosecutor for violations of an ordinance of the Borough of Hillsdale. This ordinance declares the failure to provide heat to a temperature of 68° Fahrenheit from 6 a.m. to 10 p.m. in any used or occupied buildings (except certain type buildings with which we are not concerned) to be a public nuisance.
The facts are not in dispute. The prosecutor is the owner of a six-family apartment house which was rented for residence purposes and she was under agreement to supply heat to the tenants. This building is heated by a central oil burning plant. The proofs were that on February 7, 10 and 12, 1943, tests were made by the Health Officer of the municipality between the hours of 6 a.m. and 10 p.m. in various living apartments in the building and that temperatures were found to be below the standard required by the ordinance. The prosecutor testified that she had no personal knowledge of the temperatures in any of the apartments on the dates in question but said that she had agreed to furnish to each tenant all the heat she could get and was trying to furnish heat up to 65° Fahrenheit.
The prosecutor contends that the ordinance is invalid because it does not appear to have been enacted under authority of R.S. 26:3-31, subd (m), N.J.S.A., and in fact conflicts therewith. That statute authorizes local boards of health to compel owners of buildings occupied as residences by more than two families, when owners have agreed to supply heat, to provide same at specified times at 68° Fahrenheit or above. The argument is that the ordinance in question does not follow this statute, it not having been written to compel owners only, who had agreed to do so, to furnish heat but makes any one, whether such owner or not, guilty of maintaining a nuisance; nor is it limited to buildings containing more than two families. It is clear that the ordinance is not in accord with the provisions of R.S. 26:3-31, subd. (m) supra. However, ...
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Board of Health of Weehawken Tp., Hudson County v. New York Cent. R. Co.
...A. 695 (Sup.Ct.1917); Kurinsky v. Board of Health of Lakewood Township, 128 N.J.L. 185, 24 A.2d 803 (Sup.Ct.1942); Potter v. Weleck, 131 N.J.L. 155, 35 A.2d 627 (Sup.Ct. 1944). The cited act of 1947 is affirmative legislative acquiescence in the judicial finding of the general power in the ......
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State, Borough of East Paterson, Bd. of Health v. Elmwood Terrace, Inc.
...than 68 Fahrenheit therein, was not sufficient to establish a violation of the ordinance. Reliance is placed upon Potter v. Weleck, 131 N.J.L. 155, 35 A.2d 627 (Sup.Ct.1944). The ordinance in that case required the landlord to provide heat to a temperature of 68 Fahrenheit to the 'building ......
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City of Newark v. Charlton Holding Co., M--7348
...upheld the validity generally of a similar heating ordinance as authorized by the several statutes there cited. Potter v. Weleck, 131 N.J.L. 155, 35 A.2d 627 (Sup.Ct.1944). See also the statutes cited in Newark v. Charles Realty Co., supra. True, the court in the Potter case held such ordin......