
    THE PROVIDENT INSTITUTION FOR SAVINGS, RELATOR, v. JOHN D. CASTLES, BUILDING INSPECTOR, ET AL., RESPONDENTS.
    Submitted May 12, 1933
    Decided September 15, 1933.
    Before Justices Case, Bodine and Donges.
    For the relator, Thomas McNulty.
    
    For the respondents, Arthur B. Archibald.
    
   Per Curiam.

This is an application for a writ of mandamus to compel the issuance of a permit by the building inspector of the town of Kearny for the repair of a store budding in that municipality. The building has been in existence for a number of years and is at present, as shown by the photographs, in such a condition of disrepair that it may not be used. The evidence is to the effect that the permit was refused solely upon the ground that the district in which the building is located is now a residence zone. The desire of the relator was to put the building in such condition that it might be rented for use as a store. No radical changes or alterations in the building were contemplated.

In Durbin Lumber Co. v. Fitzimmons, 106 N. J. L. 183; 147 Atl. Rep. 555, it was held that a non-conforming use instituted prior to the passage of the constitutional amendment permitting zoning, which has been actively and constantly maintained, is entitled to be continued. . In tbe instant case, the building has not always been occupied but it had always existed as a store property.

The enabling act, chapter 274, laws of 1928, provides that any non-éonforming use or structure existing at the time of the passage of an ordinance may be continued upon the lot or in the building so occupied, and any such structure may be restored or repaired in the event of partial destruction thereof. The evidence, particularly the photographs, indicates a partial destruction such as to make the building in its present condition unfit for the non-conforming use to which it was devoted at the passage of the zoning ordinance.

We are of the opinion that the relator was entitled to put the building in condition for the previously existing nonconforming use.

It is urged that the refusal of the permit was justified because of failure to file a proper plan. But there was testimony that a plan was tendered, and the defendant admitted in his testimony that no plan was usually required for repairs of this kind.

It is also argued that relator should first have appealed to the board of adjustment and is not entitled to mandamus without having first taken such an appeal. That is the ordinary course, but it is not necessary where the facts and the right are clear. Conaway v. Atlantic City, 107 N. J. L. 407; 154 Atl. Rep. 6.

The facts are all fully presented and the right of the relator is clear. A peremptory writ will be allowed.  