United Dining Car Co. v. King

136 A. 601, 5 N.J. Misc. 361, 1927 N.J. Sup. Ct. LEXIS 247

• Court: Supreme Court of New Jersey
• Decided: March 10, 1927
• Status: Published

Opinion

Per Curiam.

The facts relevant to> this case are fully stated in our opinion in United Dining Car Co. v. Camden, at the present term. Relator having applied for a permit to conduct a restaurant in the lunch wagon described in the other case, at the locality stated, and such permit being refused, applies for a mandamus to compel the issuance thereof.

In view of our decision in the cited case, it seems plain that we should not order a permit at this time. Apart from other reasons, a sufficient one seems to be that as matters stand, the relator has no lawful building in which to conduct the business sought to be licensed; at the best, its lawfulness is most doubtful, and it would seem from so much of the city ordinance as is laid before us that the building department may compel its removal or demolition. Without definitely deciding this point, it isi enough to say that the status of prosecutor in this aspect being seriously in question, the court should not act by way of mandamus in a doubtful case — an elementary rule — nor where it would create disorder or confusion. McCormick v. New Brunswick, 89 N. J. L. 117; English v. Asbury Park, 115 Atl. Rep. 64.

The rale to show cause will be discharged, with costs.