
    THE AVON-BY-THE-SEA LAND AND IMPROVEMENT COMPANY, PLAINTIFF IN ERROR, v. THE MAYOR AND COMMON COUNCIL OF THE BOROUGH OF NEPTUNE CITY, DEFENDANTS IN ERROR.
    1. The supplement to the Street Railway Companies act, which was approved March 24th, 1890 {Pamph. L., p. 113), does not empower municipal authorities to grant a right to locate tracks, without giving the notice and requiring the consent prescribed in section 8 of the original act. Pamph. L. 1886, p. 185.
    
      2. After the allowance of a writ of certiorari, the right of the prosecutor to prosecute the same will be assumed, in the absence of proof to the contrary.
    
      On error to the Supreme Court. For opinion of the Supreme Court, see ante p. 362.
    For the plaintiff in error, Samuel A. Patterson.
    
    For the defendant in error, Acton C. Hartshorne.
    
   The opinion of the court was delivered by

Dixon, J.

We approve of the construction placed by the Supreme Court on the supplement to the Street Railway Companies act, passed March 24th, 1890. Pamph. L., p. 113.

With regard to the objection that the prosecutor of the writ of certiorari was not shown to have owned any lands along the line of the proposed railway or within the borough of Neptune City, and therefore its right to complain of the municipal action does not appear, we think that, after the allowance of the writ, such right should be .assumed in the absence of proof to the contrary. The affidavits on which the certiorari was allowed are not before us, nor does the record indicate that any motion was made in the Supreme Court to vacate the allocatur or dismiss the writ, which is usually the proper mode of questioning the standing of the prosecutor. On final hearing, his right to prosecute is not primarily involved, unless the return to the writ or the proofs taken under it affirmatively show his lack of legal interest in the controversy.

The judgment of the Supreme Court should be affirmed.

For affirmance — Ti-ie Chief Justice, Dixon, Garrison, Gummere, Lippincott, Reed, Van Syckel, Bogert, Brown, Krueger. 10.

For reversal — None.  