Ferguson v. Atlantic City

42 A. 747, 63 N.J.L. 95, 1899 N.J. Sup. Ct. LEXIS 140

• Court: Supreme Court of New Jersey
• Decided: February 27, 1899
• Status: Published

Opinion

The opinion of the court was delivered by

Van Syckel, J.

In April, 1898, Fitzgerald petitioned the common council of Atlantic City for a license to keep an inn and tavern.

April 16th, 1898, certain property-owners filed a remonstrance against granting the license.

April 25th, 1898, before action was taken upon .the application, the council permitted Fitzgerald to withdraw his petition.

In May, 1898, Fitzgerald filed a new petition for license.

May 31st, 1898, C. L. Cole, on behalf of the remonstrants, sent a communication to the common council that he opposed the license:

First. Because they were without power to grant such license after permitting the first petition to be withdrawn.

Second. Because there were not enough competent signers to the petition.

June 6fch, 1898, Mr. Cole appeared for the remonstrants and opposed the license on the ground that council had exhausted its power, and could not lawfully grant a license after the first petition was withdrawn.

This was a waiver of any other objection, as no evidence was produced in support of the allegation that the signers to the petition were not competent.

The certificate to the petition being in due form, the burden-was upon the remonstrants to show some infirmity in it. Amerman v. Hill, 23 Vroom 326.

The objection to granting the license on the ground of want of power in the council was not well taken.

In Dilkes v. Pancoast, 24 Vroom 553, the petition was withdrawn after the license had been refused, while in the case before us the petition was withdrawn before any action had been taken upon it.

The writ should be dismissed, with costs.