Daniel J. Brennan, J.s.c.
This is a proceeding in lieu of prerogative writ.
It appears that some time prior to April 13, 1948, United Americans Club applied to the Building Inspector of the City of Newark for a permit to erect a building at 235 Clifton Avenue in the City of Newark. The permit was issued in due course. Construction began on the building and in the course of construction it was discovered that the building was being erected beyond the setback line fixed in the zoning ordinance of the City of Newark. The club then made application to the zoning board of adjustment for a variance which was granted on April 13, 1948, and approved by the city commission by resolution adopted and passed on April 21, 1948.
Writ of certiorari in the cause was issued on May 26, 1948, by the old Supreme Court but the cause was thereafter transferred to the Appellate Division of the new Superior Court. On March 15, 1949, the Appellate Division of the Superior Court set aside the resolution of the board of commissioners and the determination of the board of adjustment, vide Giordano v. City Commission of the City of Newark , 2 N.J. Super. 45 (App. Div. 1949), and did issue mandate accordingly. From the judgment of the Appellate Division the defendants appealed and on June 30, 1949, the action of the Appellate Division was affirmed by the Supreme Court, vide Giordano v. City Commission of the City of Newark , 2 N.J. 585 (1949), and its mandate entered thereon.
Plaintiff in the complaint here demands that the defendants be directed, commanded and enjoined to enforce the judgments and mandates aforesaid and to compel the United Americans Club to move the building back to conform with the build-back line and to enforce a penalty if the said United Americans Club fails to do so within a reasonable time, and demands costs of suit. She seeks this relief by a summary judgment under Rule 3:81-4.
The defendants City Commission of the City of Newark, William Schorn, Zoning Enforcement Officer of the City of Newark, United Americans Club and United Americans Club Holding Company, Inc., deny any liability on their part and seek summary judgment by appropriate motion.
The defendants United Americans Club and United Americans Club Holding Company, Inc., by way of answer deny any liability to the plaintiff on their behalf and by cross-claim attack such part of the zoning ordinance of the City of Newark as provides for setback of the premises in question.
An answer and cross-claim was filed on behalf of defendants Pasquale Panaccione and Joseph Mangani trading as Panaccione & Mangani which, by order entered on January 9, 1951, was withdrawn by reason of the fact that it was filed by inadvertence.
Defendant Joseph Mangani filed an answer denying any liability on his part and by way of separate defense asserted that he performed work and labor on said premises as one of several contractors acting in compliance with permit issued by the City of Newark authorizing him to proceed with the work and upon orders of United Americans Holding Company. It is admitted this defendant did not otherwise participate in these proceedings.
The fundamental question for resolution is whether or not this court has the right to order the authorities of the City of Newark, here made parties defendant, to enforce the judgments and mandates aforesaid, and to compel the United Americans Club to conform with the build-back line, and to enforce a penalty if the United Americans Club fails to do so within a reasonable time. The pertinent part of the mandate of the Appellate Division after opinion reads as follows:
"* * * Ordered and adjudged that the resolution of the Board of Commissioners and the determination of the Board of Adjustment of the City of Newark is in all things reversed, set aside and for nothing holden, with costs; * * * and that the record and proceedings be remitted to the said Board of Commissioners and Board of Adjustment of the City of Newark to be there proceeded with in accordance ...