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Con Realty Co. v. Ellenstein

Decided: July 17, 1940.

CON REALTY COMPANY, A BODY CORPORATE, PROSECUTOR,
v.
MEYER C. ELLENSTEIN, PEARCE R. FRANKLIN, JOSEPH M. BYRNE, JR., AND VINCENT J. MURPHY, CONSTITUTING THE BOARD OF COMMISSIONERS OF THE CITY OF NEWARK, DEFENDANTS



On rule directing defendants to show cause why a writ of certiorari should not issue to review ordinance of the City of Newark providing for the vacation of portions of a public street.

For the prosecutor, Kanter & Kanter (Elias A. Kanter, of counsel).

For the defendants, James F. X. O'Brien (Joseph A. Ward, of counsel).

Before Justices Case, Donges and Heher.

Heher

The opinion of the court was delivered by

HEHER, J. Prosecutor assails an ordinance adopted by the Board of Commissioners of the City of Newark on December 27th, 1939, providing for the vacation, among others, of a part of Sheffield Street as a public street or highway, in the exercise of the authority conferred by section 1, subdivision (b) of Article XXII of chapter 152 of the Laws of 1917 (Pamph. L., pp. 319, 404), as amended, now R.S. 1937, 40:67-1b.

The ordinance was designed to permit the consummation of a housing project undertaken by the Housing Authority of the City of Newark, a body corporate and politic created

under the authority of the United States Housing Act of 1937 (USCA Tit. 42, ยงยง 1401, et seq.) and chapter 19 of our session laws of 1938 (Pamph. L., p. 65; R.S. 55:14A-1, et seq.), pursuant to the grants of power therein also made.

Sheffield Street runs in a northerly course from Sussex Avenue to Orange Street. It is intersected by James Street, at a distance of approximately 440 feet from Sussex Avenue and 490 feet from Orange Street. The portion thus vacated extends from a point about 180 feet north of Sussex Avenue to Orange Street, exclusive of the James Street intersection. Prosecutor is the owner of a tract of land fronting on the northerly side of Sussex Avenue, and extending back a distance of 180 feet along the easterly side of Sheffield Street and about 216 feet along the westerly side of Boyden Street, a highway generally parallel with Sheffield Street to the east; and it maintains thereon an automobile service station and showroom. Prosecutor's lands therefore do not abut on the vacated section of the highway.

The first ground of challenge is that the ordinance in this regard is "arbitrary and unreasonable."

More specifically, it is said that prosecutor "is left in a cul-de-sac, and he (sic) and the rest of the traveling public * * * must perforce use other streets;" that, since its lands are devoted to this special use "in a business area," the "importance of keeping Sheffield Street open as a thoroughfare, not only for the benefit of the prosecutor, but for the benefit of all businessmen, cannot be over-emphasized;" that the closing of the street will "divert the business of * * * valuable customers from the present existing facilities to another district;" and that the municipal water main, sewer, gas and like facilities beneath the street surface will be "within private property lines, not accessible for either repair or enlargement." Because of these considerations, the enactment is termed an "abuse of power."

There is nothing of substance in these contentions. The vacation of public streets and highways is essentially a legislative function. It is therefore a plenary and absolute power, subject only to constitutional limitations; and it may be ...


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