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Lipkin v. Duffy

New Jersey Supreme Court


Decided: April 15, 1937.

BENJAMIN LIPKIN, PROSECUTOR,
v.
VINCENT C. DUFFY, RECORDER, ETC., AND THE CITY OF PATERSON, RESPONDENTS

On certiorari.

For the prosecutor, Mendelsohn & Mendelsohn.

For the respondents, Charles F. Lynch, Salvatore D. Viviano and Frederick C. Vanhof.

Before Justices Parker and Lloyd.

Lloyd

[118 NJL Page 84]

LLOYD, J. The writ in this case brings up the conviction of the prosecutor, a citizen of New York, for violating an ordinance prohibiting the maintenance of a junk yard in the city of Paterson without a license being first obtained therefor, together with the ordinance upon which the conviction was based.

The ordinance and conviction based thereon are claimed to be invalid because by its terms the ordinance exacts that

[118 NJL Page 85]

no person not a citizen of the United States and a resident of the city for two years next preceding the application for license shall be licensed.

The ordinance is both unreasonable and discriminatory under our cases in so far as it excludes non-residents from license. Westfield v. Stein, 113 N.J.L. 1, and cases there cited.

But this does not avail the prosecutor to have the conviction set aside. His remedy was by mandamus to compel the consideration of his application for a license subject to the lawful features of the ordinance but without regard to the illegal provision of non-residence contained therein; and not to attempt to maintain a junk yard in violation of the valid portions of the ordinance without the issue of any license whatever. Fields v. Duffy, 115 N.J.L. 319.

The writ is dismissed, with costs.

19370415


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