
    NATHAN SLAMOWITZ AND JOHN PALARA, RELATORS, v. JOHN JELLEME, INSPECTOR OF BUILDINGS OF THE CITY OF PASSAIC, AND THE BOARD OF ADJUSTMENT OF THE CITY OF PASSAIC, RESPONDENTS.
    Argued October 7, 1925
    Decided November 17, 1925.
    Zoning — Apartment-houses in Restricted Territory — Relators Made Application With Consent and Approval of Owner— They Pursued Necessary Steps to Obtain Permit — They Exhausted Their Remedies by Appeal — Board of Adjustment Cannot Try Constitutional Rights of Relator.
    On rule to show cause why a writ of mandamus should not issue.
    Before Justices Trenchard, Katzenbach and Lloyd.
    For the relators, Ward & McGinnis.
    
    For the respondents, Thomas E. Duffy and Frederick S. Raazenhofer.
    
   Per Curiam.

A rule was issued in this case requiring the respondents to show cause whir a peremptory or alternative writ of mandamus should not be awarded to compel the issuance oí a building permit to the relators. Under permission granted in the rule depositions have been taken from which it appears that the relators had a contract to purchase from one Sw.an certain lands in the city of Passaic, and that they, with the consent of Swan, made application to the defendant Jelleme, as building inspector of Passaic, for a permit to erect an apartment-house. The application was refused by the im spector on the ground that the relators would not be permitted to build an apartment-house on the lot because of the provisions of a zoning ordinance. The application was for a two-familv apartment-house and the plans therefor were in the possession of the relators, but the inspector refused to' examine them. Further application to the board of commissioners of the city was made, and the relators were informed that a board of adjustment was about to be created before whom they could appear. Upon the creation of this board the relators applied for a permit and were again denied. It is apparent from the depositions taken that this refusal was based solely on the ground that to grant a permit would be in violation of a zoning ordinance forbidding the erection of apartment houses on lands located as were those of the relators.

In the defendants’ brief it is sought to sustain this refusal on several grounds—

1. That the relators were not the owners of the property at the time they made application. The application, however, was made with the consent and approval of the owner, and is controlled by the ease of Reimer v. Dallas, 3 N. J. Adv. R. 1302.

2. That the relators did not follow the necessary steps to get a building permit. We think the evidence discloses to the contrary.

3. That the relators did not exhaust their remedies by appeal. This point is wholly without merit. Upon the refusal by the building inspector relators made application to the board of commissioners, were referred to an adjustment board to be created, and to this board they .applied and were again refused. What more they could have done it is difficult to conceive. The last step, however, they were not obliged to take. • The constitutional rights of the relators were not triable before that body (Losick v. Binda, 3 N. J. Mis. R. 421), and these rights are settled by the case of Ignaciunas v. Risley, 2 N. J. Adv. R. 852, in the Court of Errors and Appeals, and in this court by Nelson Building Co. v. Binda, 3 N. J. Mis. R. 419.

The rule to show cause will be made absolute, to the end that a peremptory writ of mandamus may issue.  