Harrison R. Van Duyne, Inc. v. Senior

135 A. 676, 5 N.J. Misc. 158, 1927 N.J. Sup. Ct. LEXIS 363

Opinion

Per Curiam.

In the case No. 38 there is a demurrer to the return of an alternative writ of mandamus in what purports to be a zoning case. Case No. 73 is a motion to strike out the return. This latter motion must be denied under the case of McAllister v. Atlantic City, 90 N. J. L. 93. The Practice act of 1912 (Pamph. L. 1912, p. 377) does not apply to pleadings resting on a prerogative writ.

Case No. 73 — the demurrer must be overruled, because the return to the alternative writ sets up and raises substantial issues of fact, which are admitted by the demurrer.

The motion to strike out in case No. 73 is denied and the demurrer is overruled, with costs.