State ex rel. Freeland v. Sargeant

143 A. 73, 6 N.J. Misc. 906, 1928 N.J. Sup. Ct. LEXIS 93

• Court: Supreme Court of New Jersey
• Decided: September 20, 1928
• Status: Published

Opinion

Per Curiam.

We conclude that there should be a judgment for respondent. The practice looking to ascertainment of the facts is faulty, for when on an alternative writ of mandamus an issue of fact is raised, the case normally calls for a trial by jury. Jones v. Guttenberg, 66 N. J. L. 665. Counsel having taken depositions and submitted them to the court for a finding of facts, we are not disposed to have the case go off on this ground, as it is controlled by broader considerations.

Eelator asks the court to compel the issue of a building permit over the prohibitions of a zoning ordinance and of a building ordinance. There are technical reasons for saying the building ordinance was not complied with; one at least is meritorious; the feature of self closing fire doors.

But apart from all this, the case is controlled in its general features by the decision of this court in Koplin v. South Orange, 142 Atl. Rep. 235; 6 N. J. Mis. R. 489, holding in substance that since the constitutional amendment of 1927 relating to zoning, and the act of 1928, chapter 274, the court will not undertake to override the powers thus conferred, even retroactively, on the municipal body.

Let judgment he entered accordingly.