The opinion of the court was delivered by
This is а zoning ease. The premises in question are on the northwest corner оf the Hudson County Boulevard and Kensington avenue in Jersey City, and consist of a building еrected as a dwelling house, and the lot whereon it stands. The district is zoned as residential. The Kensington Corporation, planning* to adapt it for use as an undertaker’s establishment dignified by the name of “Funeral Home,” and deeming that there had been a “non-conforming” use since before the zoning ordinance, made an application for permit to alter it as a funеral home, which came through the usual channels to the board of adjustment; and that board in March, 1936, granted a permit. The matter seems to have rеsted in that condition for about six months, but in *115 the early fall, the neighbors filed a protest, and the matter came np again before the board of adjustment which, after a hearing, changed its decision and revoked the permit. The present case results as a certiorari to that revocation. It is claimed thаt the board had no legal authority to revoke, but a reading of the argument seems to indicate that it is based on the proposition that the testimony to a non-conforming use was uncontradicted. What testimony there is on this point tends to show that at the time of the passage of the zoning ordinanсe, the property was used as a doctor’s house and office; thаt later it was used as a tea room; whether after the ordinance or before is not clear, and in our view not material. Based on this evidenсe, it is argued that the fact that the property was used as a doctor’s office, and then as a tea room, establishes a non-conforming use available for any other purpose whatever. In other words, if the owners of a building which had been subjected to the non-conforming use of a tea room wished to use it as a butcher shop or a grocery store, оr a gasoline service station, or what not, a status for such other use wаs established by the fact that a doctor had used it for an office, and thаt some one had used it as a tea room. We cannot read this eithеr in the statute or the ordinance. We think it clear that the “continuance of a nonconforming use” is a continuance of the same use and not of some other kind of use. The language of section 11 of the statute reads, “Non-conforming building and uses. Any nonconforming use or structure existing at the time оf the passage of an ordinance may be continued upon the lot or in the building so occupied,” &c. Pamph. L. 1928, p. 703. The ordinance is of course controlled by the statute.
Now the non-conforming use that existed at thе time of the ordinance was either a doctor’s office or a tea room; and it is not proposed to conduct either of these on these premises at this time. In the ease of Durkin Lumber Co. v. Fitzsimmons, 106 N. J. L. 183, the non-conforming use was а lumber yard both before and after. In the case of Amon v. Rahway, 117 Id. 589, recently decidеd by us, the non-conforming use was an automobile, salesroom or garagе and it was desired to add to it.
*116 Prosecutor relies on the case of Freeman v. Hague, 106 N. J. L. 137, which holds that there is an estoppel agаinst revocation of a permit when the owner has committed himself by building contracts and has incurred substantial expense. But the prosecutor citеs no evidence in this case establishing any such state of things, respondents deny that there is such evidence, and on examination of the printed boоk we fail to find evidence of any substantial alteration or indeed any аlteration germane to a “funeral home” or any contract therеfor. The case is wholly lacking in any element of financial prejudice to the prosecutor, and without that element no estoppel would arise in this ease.
The writ will be dismissed, with costs.