
    JULIUS M. KAYCOFF, RELATOR, v. WILLIAM T. KALTENBACH, BUILDING INSPECTOR OF THE CITY OF ELIZABETH, DEFENDANT.
    Submitted June 9, 1925
    Decided October 1, 1925.
    Zoning — Stores in Residence District- — Case Within Rule in Ignaciunasi v. Risley- — -Defendant’s Contention That Since Relator Was Refused Permission by Board of Adjustment, After Having Been Refused by Inspector, He Had Lost His Remedy by Mandamus, Unsound — Obvious Purpose of Creation of Board Was to Make Special Exceptions and Present Proceeding is Not on the Theory That a Special Exception is Desirable, But That the Attempted Restriction of Relator’s Property is Unlawful.
    On rule to show cause why mandamus should not issue.
    Before Justices Trenchard, Katzenbach and Lloyd.
    For the relator, Michael H. Feldman.
    
    For the defendant, Joseph, T. Hague.
    
   Per Curiam.

This rule directs the building Lnsjiector of the city of Elizabeth to shew cause why a writ of mandamus should not issue commending him to issue a permit to relator for the erection of a two and one-lialf story frame dwelling for stores and dwellings at the corner of Summer street and Grier avenue, in Elizabeth.

The return discloses that the relator, being the owner of a plot of land at the southerly corner of Summer street and Grier avenue, and known on the tax maps as Nos. 722, 724, 726, 728 Summer street, Elizabeth, New Jersey, desiring to construct a building thereon, prepared plans disclosing a two and one-half story frame building, of which the first or ground floor was to be occupied by two stores and rooms in the rear thereof, and the second floor laid out as living quarters for two tenants; that the sole reason the permit was refused was because the city of Elizabeth has adopted a zoning-ordinance, under which the premises of the relator are placed in “Residence District E,” in which district stores are not permitted. There being nothing before the court to show the building of the character contemplated by the relator to be against public health, safety or public welfare, the ease falls squarely within the principle laid down in Ignaciunas v. Risley, 98 N. J. L. 712 ; affirmed, 2 N. J. Adv. R. 853; Holding Corp. v. Hague, 2 N. J. Mis. R. 75; Plaza Apartment v. Hague, Id. 76; Huppert v. Hague, Id. 348; Realty and Construction Co. v. Jelleme, Id 356; While v. Bower, Id. 357; King v. Favier, Id. 358; Hench v. East Orange, Id. 510; State v. Bigelow, Id. 711.

Eut the defendant contends that because the relator, after the inspector’s refusal, “petitioned” the hoard of adjustment, established in the city pursuant to chapter 146 of laws of 1924, and was again refused permission, he has lost his remedy by mandamus, which he is now pursuing. We think not. The obvious purpose of the act of 1924 was to confer upon the board of adjustment power to, “in appropriate cases and subject to appropriate conditions and safeguards, make special exceptions to Ihe terms of the ordinance,” &c.

The present proceeding proceeds,-not upon the theory that a special exception is desirable and justified, but upon the assumption of the position, which is well taken, that the attempted restriction affecting relator’s property'is unlawful.

A writ of peremptory mandamus will be awarded. If an appeal is desired, an application for an order to mould the pleadings will be entertained. •  