For the prosecutor, George I. Marcus and Ralph W. Chandless.
For the respondents, Donald M. Waesche.
For the amicus curiae, Walter H. Jones.
Before Justices Donges, Colie and Eastwood.
The opinion of the court was delivered by
DONGES, J. This writ of certiorari brings up for review the conviction of the prosecutor upon two counts of a complaint charging various violation of the zoning law of the defendant Township of Teaneck. The first count charged a violation of section 3 of the ordinance and the second count a violation of section 17 of the ordinance.
The building of the prosecutor, which was erected and used prior to the adoption of the zoning ordinance as a public garage, which use was discontinued, fronts on Fort Lee Road, Teaneck, and is located for approximately 70 feet of its length in a business district and for the remaining 30 feet in a class "A" residential zone. It was used as a public garage and then as a storage garage until prosecutor commenced in June, 1946, using it as an auto body shop wherein he engaged in the business of auto body repairs and the painting of automobiles. Such a use is not one authorized in a class "A" residential zone.
The first point raised is that the magistrate was without jurisdiction to convict the prosecutor on the first count of the complaint by reason of a defect in the complaint. The first count charged a violation, "In that contrary to the provisions of Section III of the aforesaid ordinance he did use and has
used since June 12th, 1946, the building and premises known as 237 East Fort Lee Road, Teaneck, New Jersey, which premises are situate in a class 'A' residential zone for a use prohibited in such zone, to wit: an Auto Body Shop, and has therein engaged in the repair and painting of auto bodies."
We think this allegation sufficiently and clearly charges the prosecutor with a violation of the ordinance. "It is sufficient if they set out with clearness the offense charged and the substance of that part of the ordinance which has been violated, with a reference to the title, the date, and section." Keeler v. Milledge, 24 N.J.L. 142. We think the count clearly apprised the prosecutor of the section of the ordinance he allegedly violated, the conduct that constituted the violation and that, the offense being a continuing one, the allegation of time was sufficient. Cf. Dallas v. Atlantic City, 120 Id. 314. State v. Newman, 98 Id. 294. We see no merit in this point.
Point two has to do with the second count of the complaint and again alleges lack of jurisdiction by reason of a defective complaint. This count charges a violation in this language, "In that contrary to the provisions of Section XVII of the aforesaid ordinance he did occupy and use and has since June 12th, 1946, occupied and used the lands and premises known as 237 East Fort Lee Road, Teaneck, New Jersey, for the purpose of carrying on the business of an Auto Body Shop and has therein engaged in the repair and painting of auto bodies without a certificate of occupancy having been issued by the Building Inspector of said township, and in that he has changed and extended the use of and altered the non-conforming use of said premises ...