
    JULIANO CONSTRUCTION COMPANY, RELATOR, v. FREDERICK BIGELOW, BUILDING SUPERINTENDENT, AND THE BOARD OF ADJUSTMENT OF THE CITY OF NEWARK, DEFENDANTS.
    Submitted October 16, 1925
    Decided February 5, 1926
    Filed March 2, 1926.
    Zoning—Apartment-House, in Residential District—Case Within Rule of ignaciunas v. Risley.
    On rule to show cause why a peremptory or alternative writ of mandamus should not be issued.
    Before Justices Teenchard, Katzenbach and Lloyd.
    Eor the relator, Kerr & Potter (Harold F. Dorgeval, of counsel).
    Eor the defendants, Jerome T. Congleton and Charles M. Myers.
    
   Per Curiam.

This case is before us on a rule to show cause why a peremptory or alternative writ of mandamus should not be issued out of this court enjoining the respondent Frederick Bigelow, building superintendent of the city of Newark, and the board of adjustment of the city of Newark, to issue a building permit granting to .the delator the right to erect an apartment-house with stores on the ground floor, and one two-car garage on premises known as 641, 647 Summer avenue, in the city of Newark. The facts have been stipulated. From these yt appears that the relator is the owner of a tract of land at the southeast corner of Summer avenue and Carteret street, in the city of Newark. The premises are free and clear of all restrictions. On July 14th, 1925, the relator applied to the superintendent of buildings of the city of Newark for a permit to construct the improvements mentioned upon his property, and submitted to him plans and specifications therefore which had previously been approved by the state board of tenement-house supervision. On July 20th, 1925, the said superintendent of buildings refused to issue a permit upon the ground that the proposed building would constitute a violation of article 1, section 2 of the zoning ordinance of the city of Newark, adopted December 31st, 1919, which classified the district in which the relator’s lot is located as a residential district for which building permits could only be issued for certain classes of buildings. The building proposed to be built by the relator did not fall within any of these classifications. On July 30th, 1925, the relator appealed to the board of adjustment of the city of Newark, organized under chapter 146 of the laws of 1924. On September 3d, 1925, this board affirmed the action of the building superintendent.

Summer avenue is a thoroughfare seventy-five feet in width. The proporty surrounding the relator’s property consists mostly of two- or three-family houses. Opposite the relator’s property is a church and parish house. A parochial school is four hundred feet distant. Opposite the school is a series of one-car garages. On Carteret street, one block east of Summer avenue, at Lincoln avenue, there is a factory in operation, and at the corner diagonally opposite the factory are a number of stores.

We see no question involved in the present application which has not been heretofore settled. The case, in our opinion, falls within Ignaciunas v. Risley, 98 N. J. L. 712; affirmed, 125 Atl. Rep. 121. The case of Builders Realty Co. v. Bigelow, 128 Id. 887, is directly in point. The property involved in this latter case was upon Summer avenue.

In view of these decisions, we think the relator is entitled to a peremptory writ of mandamus. A peremptory writ of mandamus is accordingly awarded.  