
    FRANKLIN REALTY AND MORTGAGE COMPANY, RELATOR, v. VILLAGE OF SOUTH ORANGE AND IRA T. REDFERN, BUILDING INSPECTOR OF THE VILLAGE OF SOUTH ORANGE, DEFENDANTS.
    Submitted October term, 1925
    Decided February 2, 1926.
    Zoning—Apartments and Stores in Restricted Territory—Case Controlled by Ignaciunas v. Risley—“Set Back” Provision of Zoning Ordinance Ineffective.
    On rule io show cause why a mandamus should not issue.
    Before Justices Tebnchaed, Katzenbach and LI.OYD.
    For the relator, Ilowe & Davis (Edward L. Davis, of counsel).
    For the defendants, Rilcer & Riher (Thomas E. Fitzsimmons, of counsel).
   'Pee Ctjeiam.

This is a rale to show cause why an alternative or peremptory writ of mandamus should not issue directing the village of South Orange and the building inspector of the village to issue a permit to the Franklin Realty and Mortgage Company for the erection of a two-story brick building containing six stores and one apartment for the use of a janitor on the first floor, and six apartments on the second floor, on the property of the company.

It appears that the plans and specifications have been approved by the boards of tenement-house commissioners of New Jersey, but that permission to erect the building was refused by the building inspector, for the reason that a zoning ordinance forbids the erection of stores and apartments on the premises, the property being located in what is known as Residence “A” District, and for the reason that the proposed building would violate the “set back” provision of the ordinance respecting that district.

The block upon which the relator’s property is situated is at the southwest corner'of South Orange avenue and. Fair-view avenue. The property has a frontage on South Orange avenue of one hundred feet and on Fairview avenue of one hundred and twenty-five feet. Fairview avenue joins South Orange avenue at* the corner upon which relator’s property is situated, at an acute angle.

We think that this ease is controlled by the principles laid down in Ignaciunas v. Risley, 98 N. J. L. 712; affirmed, 99 Id. 389.

The “set back” provision of the zoning ordinance is ineffective and constitutes no reason for denjdng the permit. Eaton v. South Orange, 3 N. J. Mis. R. 957, 958.

The contention made in the defendants’ brief, that the permit was properly refused because of the testimony as to the increased traffic, is also answered by the last-mentioned case.

A peremptory writ of mandamus will be awarded. In ease an appeal is desired, an application will be entertained for an order for the moulding of the pleadings.  