
    THE STATE, EX REL. SAMUEL ROSENBAUM ET AL., RELATORS, v. THOMAS BUTLER, BUILDING INSPECTOR OF THE CITY OF PLAINFIELD, ET AL., RESPONDENTS.
    Submitted March 23, 1925
    Decided April 18, 1925.
    Mandamus — Awarded Only Where Right to Relief is Clear at the Time of Award — Right to a Strip of Land for Building Purposes in Question — This Question Must be Settled by Appropriate Proceedings Before Writ Can be Awarded.
    On mandamus. On rule to show cause.
    Before Justices Kalisch, Black and Campbell.
    Eor the relators, Winfield S. Angleman.
    
    For the respondents, Charles A. Reed and William F. Vosseller.
    
   Pee Curiam.

Relators leased the premises 126 to- 130 Park avenue, in Plainfield. One of the terms of such lease was that relators should extend the present building on said premises in line with other premises on Park avenue north of the- present building. The premises, 120 to 124 Park avenue, were also included in said lease, and relators applied for and obtained a permit to extend the building on such premises so' that they would be in line with buildings to the north. This required an extension of some three or four feet. Such work was completed.

The permit for the extension of the building, 126 to 130 Park avenue, was issued, aud relators entered into a contract for the work. The premises were occupied by a tenant who was paid $300 to vacate-. Subsequently, the permit was revoked upon the ground that the application therefor had not been verified as required by the building code. In all probability the real reason for its revocation was the discovery of an ordinance ol 1873 fixing a building line on Park avenue, and a contention thereunder on the part of the city that the extension of the proposed building some three■ or lour feet would be upon property of the city within the sidewalk line of Park avenue.

The parties in their briefs argue the matter1 as if such question as to this strip of three or four feet was one that could 'be decided upon this rule.

Of course, it cannot be.

"A writ of mandamus will, not be awarded unless the right of the relief is clear at the time of the award.” State v. Newark, 35 N. J. L. 396; Hugg v. Ivins, 59 Id, 139; Vanalla v. Smith, 61 Id, 188; Gliestman v. West New York, 74 Id. 74; Secaucus v. Kiesewetter, 83 Id. 227; Connolly v. Smith, 86 Id. 466.

From the proofs before us the right is not clear.

If the strip' of land in question is part of the roadway of Park avenue included in the sidewalk of that thoroughfare, then respondents have no right to build thereon, and would not be entitled to a permit for that purpose.

This matter must be settled by some appropriate proceeding before the writ of mandamus can be awarded.

The rule to show cause is dismissed, with costs.  