
    SABASTIANO CARUSO, PROSECUTOR, v. CITY OF NEWARK AND FLORA DI DONATO, DEFENDANTS.
    Submitted January 31, 1937
    Decided June 4, 1937.
    Before Justices Parker, Lloyd and Donges.
    Eor the prosecutor, Algernon T. Sweeney.
    
    Eor the defendant city of Newark, Frank A. Boettner and Thomas M. Kane.
    
   Per Curiam.

This is a certiorari to review the recommendation of the board of adjustment of the city of Newark to the board of commissioners of the city of Newark, that a permit be granted to defendant Plora Di Donato to construct a store building in a second residential district in said city, and the action and procedure of the governing body approving said recommendation upon stipulated conditions.

It will be noted there are two defendants, namely, the city of Newark and the owner of the property involved, who has a substantial right in the matter in litigation. The state of the case is largely stipulated, but, as appears, by the prosecutor and the city of Newark only. The defendant Di Donato has not consented thereto. In this situation, we conclude there is no state of the case before us upon which we may determine the rights of all the parties to the writ and who have rights which must be determined.

Further, it appears that there is pending in the Court of Chancery a proceeding to determine the right of the defendant Di Donato to construct a store building on the land in question, by reason of certain alleged restrictive covenants in her deed and other deeds to lands in the neighborhood. It is possible that the Chancery proceeding may be dispositive of the questions sought to be determined under the writ in the instant case.

For these reasons, we conclude that the writ of certiorari presently pending should be dismissed, without prejudice, however. Such will be the order.  