City of Newark v. Daly

46 N.J. 48 (1965) 214 A.2d 410

CITY OF NEWARK, PLAINTIFF-APPELLANT,
v.
JOHN DALY, AGENT AND N.J. AUTOMATIC DAIRY SERVICE, INC., DEFENDANTS-RESPONDENTS.

The Supreme Court of New Jersey.

Argued October 11, 1965. Decided November 22, 1965.

Mr. William H. Walls, Assistant Corporation Counsel, argued the cause for appellant (Mr. Joseph S. Pecora, Assistant Corporation Counsel, on the brief; Mr. Norman N. Schiff, Corporation Counsel of the City of Newark, attorney).

Mr. Allen Ravin argued the cause for respondents (Messrs. Wilentz, Goldman & Spitzer, attorneys).

The opinion of the court was delivered

PER CURIAM.

Defendants were convicted in the Municipal Court of Newark, New Jersey of violating the zoning ordinance of the city. Daly is the agent in charge of a large, modern, multi-family high-rise apartment house complex located in Newark and consisting of five separate buildings, each accommodating at least 400 families. N.J. Automatic Dairy Service, Inc., on Daly's authorization, installed a single coin-operated milk vending machine in the basement of each of the five buildings for the use of the tenants therein. The premises are located in the Fourth Residence District in which the land use is limited to multiple dwellings, hotels, hospitals and medical clinics, general practice by physicians, surgeons and dentists, boarding houses, convalescent and nursing homes, clubs and some other uses of a like nature. General business uses are not permitted. On May 1, 1962 the Division of Health of the city had granted licenses to Automatic to sell milk by vending machine at these apartments. On January 7, 1963 the complaints in the present case were issued charging that the installation and use of the five machines constituted a business use of the premises in the described residential district in violation of the zoning ordinance.

At trial in the Municipal Court defendants contended that the milk vending machines did not constitute a business use of the premises, but were simply a use incidental to the residential character of the apartment houses. After conviction and imposition of fines on defendants, an appeal was taken to the County Court where, on a trial de novo, the judgment was affirmed. Appeal to the Appellate Division followed, and by a majority vote the conviction was reversed. City of Newark v. Daly, 85 N.J. Super. 555 (App. Div. 1964). The city then came to this Court for review.

The Appellate Division, after examining the record, found that the installation and use of the vending machines for the benefit and service of the tenants of the apartments were not prohibited expressly or impliedly by the zoning ordinance. We agree with that determination and therefore affirm the judgment of reversal.

For affirmance — Chief Justice WEINTRAUB and Justices JACOBS, FRANCIS, PROCTOR, HALL, SCHETTINO and HANEMAN — 7.

For reversal — None.