Friedman v. Keil , 113 N.J. Eq. 37 ( 1933 )

The decree under review should be affirmed.

This case involves no complicated question of law. It is largely one of fact. Appellant's counsel complains that the vice-chancellor erroneously found as a fact that "the neighborhood in which the parties reside and in which the defendant's business is conducted is almost entirely residential, except for a few stores and the defendant's bakery;" whereas the facts clearly show (says appellant) that the neighborhood is zoned for business and that Hawthorne avenue (the street upon which defendant's bakery is located) is a busy retain thoroughfare. Counsel for respondent insists on the other hand that this neighborhood is zoned by the city of Newark as a strictly residential neighborhood.

Our examination of the testimony leads us to the conclusion that it was neither an entirely residential nor entirely business neighborhood. The ground floors of many of the buildings in this locality were occupied by stores, while the upper floors were, as a rule, used for residential purposes.

It was in no sense a manufacturing or factory district. The vice-chancellor held that the defendant's business in this district was lawful and was not a nuisance per se, but found as a fact that it was not operated in a fair and reasonable way with regard to the rights of the complainant who lived next door.

We do not think, therefore, that the incorrect designation of the neighborhood by the vice-chancellor is of sufficient importance to change the result of his conclusions as to the essential facts in the case.

With this explanation, we approve the opinion of the vice-chancellor and affirm the decree for the reasons expressed in that deliverance.

For affirmance — THE CHIEF-JUSTICE, TRENCHARD, PARKER, LLOYD, CASE, BODINE, DONGES, HEHER, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, DILL, JJ. 14.

For reversal — None.