Town of Belleville v. Kiernan, A--33

• Decision Date: 16 March 1956
• Docket Number: No. A--33,A--33
• Citation: 39 N.J.Super. 480,121 A.2d 411
• Parties: The TOWN OF BELLEVILLE, Plaintiff-Respondent, v. George F. KIERNAN, Defendant-Appellant. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 480

39 N.J.Super. 480

121 A.2d 411

The TOWN OF BELLEVILLE, Plaintiff-Respondent, v. George F. KIERNAN, Defendant-Appellant.

No. A--33.

Superior Court of New Jersey.

Appellate Division.

Argued Feb. 27, 1956.

Decided March 16, 1956.

Robert C. Gruhin, Jersey City, argued the cause for the defendant-appellant.

Lawrence E. Keenan, Belleville, argued the cause for the plaintiff-respondent.

Before Judges GOLDMANN, FREUND and CONFORD.

The opinion of the court was delivered by

FREUND, J.A.D.

The defendant, George F. Kiernan, appeals from a judgment of conviction by the Essex County Court after a trial De novo on appeal from his conviction in the Municipal Court of the Town of Belleville for violation of section 2 of the municipality's zoning ordinance in that he used his private residence for funeral business.

Two complaints, identical except for dates, charged that the defendant on February 9 and 10, 1955 violated the zoning ordinance 'in that he used or permitted to be used premises commonly known as 272 Holmes Street, Belleville, New Jersey, located at the Northeast corner of Holmes Street and New Street as a funeral home, mortuary, undertaking establishment or as a place where a dead body was cared for and stored for the purposes of mourning and ceremonial services prior to burial.' At the trial De novo before the County Court the testimony was that the defendant is by occupation an undertaker and conducts a funeral establishment at No. 101 Union Avenue, Belleville, New Jersey. He was engaged and paid by Kathryn Lister, widow of Joseph Lister, to conduct the funeral and burial of her husband, who died on February 7. The decedent's body was first taken to the defendant's undertaking establishment on Union Avenue, and the following day was transferred to his residence at No. 272 Holmes Street, where the body was viewed and services conducted until February 10 when it was removed for burial.

The Holmes Street premises are owned by the defendant, George F. Kiernan, and Nellie F. Kiernan, and according to the zoning map received in evidence are located in a residential zone. The pertinent section of the ordinance provides that:

'Section 2. In a residence zone, no building or premises shall be used, and no building shall be erected or altered which is arranged, intended or designed to be used, except for one or more of the following uses:

'1. Dwelling or Tenements, including the office of a physician, surgeon, dentist, lawyer, dressmaker, artist, or musician when situated in the same dwelling or apartment used by such physician surgeon, dentist, lawyer, dressmaker, artist, or musician as his private dwelling.'

There follows a list of other permissive uses of buildings, but an undertaking or funeral establishment is not among them.

On the first complaint the County Court suspended sentence, but on the second it imposed a fine of $35 and $5 costs. The defendant appeals and attacks the validity of the complaint and of the ordinance. We have concluded that the first point is well taken.

The complaint does not allege that the Holmes Street premises are in a residential zone. This omission is fatal. The complaint Sub judice and its imperfections are identical with the situation in the case of Apter v. City of Newark, 142 A. 310, 311, 6 N.J.Misc. 554 (Sup.Ct.1928). The court said:

'The violation aimed at is the carrying on of a business in a residential district, and, this proceeding being summary and of a penal nature, all the acts necessary to constitute a violation of the ordinance should be stated * * *. The character of the place is an essential fact to be alleged in the complaint, and to be set forth in the conviction; And this does not appear.'

In accord, Bachand v. Botti, 125 N.J.L. 26, 27, 13 A.2d 794 (Sup.Ct.1940).

At the trial before the County Court the defendant raised objection to the complaint. The transcript omits the colloquy relating thereto, but on the oral argument the plaintiff conceded that it had been made. However, the complaint was not amended either on motion of the plaintiff or of the court. The fact that the plaintiff introduced in evidence the zoning map showing the premises to be in the residential area did not cure the defect in the complaint.

The plaintiff argues that by the appeal and trial De...