Union Towel Supply Co. v. Mayor & Aldermen of Jerseycity

• Decision Date: 08 January 1924
• Citation: 123 A. 254
• Parties: UNION TOWEL SUPPLY CO. v. MAYOR AND ALDERMEN OF JERSEYCITY et al.
• Court: New Jersey Supreme Court

123 A. 254

UNION TOWEL SUPPLY CO.

v. MAYOR AND ALDERMEN OF JERSEYCITY et al.

Supreme Court of New Jersey.

Jan. 8, 1924.

Certiorari by the Union Towel Supply Company against the Mayor and Aldermen of Jersey City and Christian Feigenspan, a corporation, to remove an ordinance of the City. Ordinance set aside.

Argued by consent before MINTURN, J.

George L. Record, of Jersey City, for prosecutor.

Porter, Zink & Lafferty, of Newark, for Christian Feigenspan.

Thomas J. Brogan, of Jersey City, for Jersey City.

MINTURN, J. The Jersey City commissioners on October 3, 1922, passed an ordinance authorizing the Christian Feigenspan corporation to construct and maintain a platform immediately in front of its ice manufacturing plant on Bishop street. Prior to the passage of the ordinance, the prosecutor, whose property immediately adjoins that of the Feigenspan corporation, through his attorney, appeared before the commissioners and protested against the passage of the ordinance verbally and in writing.

The platform about 75 feet in length and 42 inches in height was constructed, and large cakes of ice were delivered over it to the customers of the Feigenspan corporation, whose wagons back up to the platform to receive it. The construction extending 4 feet in width is a substantial structure, whose elevated platform is supported by concrete pillars and is reached by the public wayfarers, in the use of the sidewalk, by climbing steps at either end. About 75 per cent. of the ice is delivered over the platform between 1 a. m. and 8 a. m. and the balance between 8 a. m. and 4 p. m. each day during the summer. But during the winter season the deliveries are made between 6 a. m. and 4 p. m. During this process of delivery the public traveler would be obliged to cross to the other side of the street, or to traverse the middle of the street as the only alternative to ascending the steps, and wending his way among the ice blocks, and the scattered particles of ice distributed over the platform as a necessary incident of the manipulation of the ice in its delivery.

The prosecutor's property consists of a vacant lot fronting 115 feet on Bishop street, and 200 feet on the other end fronting on Cornelison avenue. Its practical use at present is largely prospective, awaiting the decision of the respondent to use it as a location for its present business, in the event of the respondent's failure to renew its lease at its present location. For over 50 years Bishop street has been used as a public highway to a width of 30 feet from curb to curb, the sidewalk occupying 10 feet additional in width, 4 feet of which is occupied by this structure.

The prosecutor contends that the passage of the ordinance was ultra vires the commissioners; that its erection in effect is a public nuisance; that it deprives him of access to his adjoining premises; and finally that its passage was in violation of articles 5 and 14 of the federal constitutional amendments. The contention is emphasized by the defendant company that, conceding the existence of these infirmities, the prosecutor is in no position as one of the general public to take advantage of them, since his alleged injury is no greater than that suffered by the general traveling public, citing Tallon v. Hoboken, 60 N. J. Law, 212, 37 Atl. 895. The case cited may be differentiated from the ease at bar in the fact that the former dealt with the operation of a railroad upon a public street, under a dedication specifically reserving a railroad right of way on the street upon which the prosecutor's lot abutted, together with many other lots, the owners of which, with one exception, raised no objection to the operation of the road. The power being conceded by the terms of the dedication, and the grant, the abutting owners were held to have accepted their grants cum onere, and it was held that the prosecutor's property interests were not specially affected so as to entitle him as distinct from the general public to contest the legality of the ordinance by certiorari. In the case sub judice, however, the prosecutor's claim to relief is distinctively that of a specially injured property owner in that the approach to his property, over the highway, is by this construction made pro tanto more difficult and inaccessible, and his lot inferentially less desirable and valuable.

The power to make the concession in question is based upon section 11 of the city charter, viz:

"To regulate the use of streets and public places by foot passengers and vehicles, railways and engines," and section twelve, "To regulate or prevent the use of streets, for any other purposes than public travel, and to provide for the removal of any encroachment on streets and public places."

To these charter provisions is superadded the following provisions of article 22, § 1, of the Home Rule Act (P. L. 1917, c. 152) viz.:

(c) "To prescribe the time and the manner in which and the terms upon which corporations or persons shall exercise any privilege granted to them in the use of any avenue, street, highway, alley or public place or in digging up the same for laying down rails, pipes, conduits or any other purpose whatever.

(d) "To prevent or regulate the erection or construction of any stoop, step, platform, window, cellar door, area, descent into a cellar or...