
    STATE, EX REL. SAM. FINKEL, v. TOWN OF IRVINGTON AND GEORGE F. SCHMITT, BUILDING SUPERINTENDENT.
    Decided May 17, 1927.
    Zoning — Stores and Apartments in Residence Territory — Case Within Rule in Nutley Case.
    On mandamus.
    
    Before G-ummere, Chief Justice, and Justice Trenchard.
    For the relator, Maurice J. Zucker.
    
    For the respondents, Charles H. Stewart.
    
   Per Curiam.

The relator is the owner of a tract of land fronting on Myrtle avenue, in the town of Irvington. He applied to the building superintendent of the town for a permit authorizing him to erect upon this plot a building to be used for stores on the first floor and apartments on the second floor. His application was refused upon the sole ground that the erection of such a building in that locality was prohibited by the zoning ordinance of the town. The relator thereupon applied for and obtained an alternative writ of mandamus, calling upon the respondents to issue to the relator the permit requested or to show good cause to the contrary thereof. In making return to the writ, the respondents made no attempt to justify the refusal of the building superintendent upon any other ground than that the ordinance of the town prohibited the erection of such a building upon the relator’s property.

The case thus presented is identical in its legal essence with that of State v. Nutley, 99 N. J. L. 389. As the decision of the ease cited was by the Court of Errors and Appeals, it is controlling upon us.

A peremptory writ will be awarded to the relator, together with costs of suit.  