On appeal from the Supreme Court.
For the appellants, Mark Townsend, Jr. (William E. Decker, of counsel).
For the respondents, Mark A. Sullivan.
The opinion of the court was delivered by
DALY, J. This is an appeal from the judgment of the Supreme Court dismissing a writ of certiorari which had
brought before the court for review a resolution of the board of commissioners of Jersey City granting to the respondent, Harry Goldowsky, permission to erect a five-story brick elevator apartment house on the premises known as 168-172 Jewett avenue, Jersey City, together with the building permit issued by Edward J. Spoerer, superintendent of buildings of Jersey City.
The appellant Gladys Townsend owns and occupies the residence immediately adjoining the easterly side of the site of the proposed building, and the appellant J. Sidney Adams owns and occupies the residence directly across the street from this site.
1. The appellants contend that the respondent Goldowsky was not the owner of the apartment house site and does not have such an interest therein as would entitle him to erect the proposed building. It is admitted that the respondent Anna B. Malone held the legal title to the premises and Goldowsky held only a contract of purchase from Mrs. Malone. The appellants to support this contention cite two cases: Malone v. Mayor and Aldermen of Jersey City (Supreme Court), 7 N.J. Mis. R. 955; Krieger v. Scott (Supreme Court), 4 Id. 942. But these cases were proceedings in mandamus to force a municipality to grant a permit to one other than the owner, and the decisions on the two cases hold that before this can be done the applicant must show that he is entitled to a permit to erect a building upon the land of another by showing that he has a present right to erect such a building on that land. This is a contention that could be made in this case by Mrs. Malone. The appellants here have no such interest as justifies them in raising the contention; and Mrs. Malone has joined as a respondent with Goldowsky in defending the resolution and permit attacked by the appellants.
2. As to the contention that the action of the city commission of Jersey City in granting the permit was improper because the petition therefor was defective, an examination of the application shows a substantial compliance with the requirements of the building code. There were no such
defects as were not waived by granting the permit. 43 C.J. 259, § 263.
3. Application for the permit was made three times: The first time it was withdrawn; the second time it was refused and the third time it was granted. After the refusal, Anna B. Malone, the owner, and Goldowsky, the applicant, joined in mandamus proceedings to compel the city to grant the permit. J. Sidney Adams and Gladys Townsend, now the appellants in this cause, were permitted to intervene and file briefs. After the writ was argued, but before it was decided, the city commissioners granted the permit. In other words they did what Mrs. Malone and Goldowsky were asking the Supreme Court to compel them to do, and the fact that they did this before the time the court might compel them to do so was not acting injuriously to any rights ...