Citation Numbers: 1 N.J. Misc. 421
Filed Date: 7/27/1923
Status: Precedential
Modified Date: 7/25/2022
This ease was decided on July 14th, 1923. Counsel for the defendant subsequently applied for and was allowed a rule to show cause why a rehearing should not be granted, or, in the alternative, permission given to mould the pleadings so as to permit an appeal to the Court of Errors and Appeals.
The contention made in behalf of the board of commissioners of the town of Nutley for a rehearing is that the decision rendered in this case is in conflict with the opinion of this court in the case of Buohl v. Beverly, 90 N. J. L. 44, which was an application for a writ of mandamus to compel the calling of an election by the board of commissioners of the city of Beverly to pass on a proposed ordinance for the creation of a board of excise commissioners for that city under the initiative and-referendum feature of the Walsh act. Pamph. L. 1911, p. 462. The application for the writ was denied on the ground that the power to create an excise board bjr ordinance no longer existed, as control over excise matters
We see no reason why a rehearing should be granted.
Upon the question whether this court should give permission to the respondent to mould the pleadings so as to permit an appeal to the Court of Errors and Appeals, we are of the opinion that the present case is differentiated from such cases as McDonald v. Freeholders of Hudson County, 1 Adv. R. 525, and Hoff v. Lee, Id. 762, in which such permission was granted. In the cases mentioned to have denied the permission would have foreclosed the defeated party from an appeal. Such is not the policy or practice of this court. In the present case the questions raised by the respondent can all be
The rule to show cause is discharged.