State v. Long Branch Com'rs

• Decision Date: 04 November 1892
• Parties: STATE (DELIONE, Prosecutor) v. LONG BRANCH COM'RS.
• Court: New Jersey Supreme Court

25 A. 274

55 N.J.L. 108

STATE (DELIONE, Prosecutor)

v. LONG BRANCH COM'RS.

Supreme Court of New Jersey.

Nov. 4, 1892.

(Syllabus by the Court.)

Certiorari to the police court of Long Branch.

Certiorari by the state, on the prosecution of Rocco Delione, against the Long Branch commissioners, removiug a judgment of the police court of Long Branch, which convicted relator of the violation of an ordinance forbidding the erection of wooden buildings on Broad way between Rockwell avenue and the sea. Conviction affirmed.

Argued June term, 1892, before Werts and Dixon. JJ.

Mr. Beisley, for prosecutor.

Mr. Johnson, for defendant.

DIXON, J. The only question raised by the reasons for reversal filed in this case is whether the evidence before the police justice warranted his conclusion that what had been done by the plaintiff in certiorari amounted to "the erection of a building." He owned a frame building, one story and an attic in height, 14 feet front on Broadway, and 24 feet deep, standing on wooden piers. This he changed by moving it back a little, by taking out the front and putting in a new one, by extending the lower story about 7 feet laterally along Broadway, by substituting a full second Story for the attic, making the roof 3 or 4 feet higher than before, and extending the second story about 10 feet laterally along Broadway, so that it projected about 3 feet beyond the lower story. Afterwards, by a separate contract, he built a one-story kitchen, 10 by 12 feet, in the rear. The principle to be applied in determining whether work of this character constitutes the erection of a building is not easily formulated. In Combs v. Lippincott, 35 N. J. Law, 483, Mr. Justice Woodhull said: "While it must be admitted that a building may be greatly changed in structure, in the materials which enter into it, and in its internal arrangements, without at all losing its identity or ceasing to be the same building, it can hardly be denied, I think, that it maybe so entirely changed in plan, in structure, in dimensions, and in general appearance, as to become, in a fair sense and according to the common understanding of men, another building,—a new building." The same idea, of making the common understanding the test for distinguishing between the mere reparation of an old building and the construction of a new building out of an old one, seems to be adopted in Pennsylvania, where the subject has received frequent examination. Thus in Armstrong v. Ware, 20 Pa....