Opinion
Argued February 8, 1928 —
Decided May 14, 1928.
On appeal from the Supreme Court, Essex county, referred to the Circuit Court for trial, and in which Dungan, C.C.J., delivered the following opinion:
"This action is brought by the plaintiff, who furnished materials for municipal work to the defendant. Gus Dreher, the contractor, who had furnished a bond under the provisions of chapter 75, laws of 1918 ( p. 203), with the Maryland Casualty Company, the other defendant, as surety.
"There is no question but that the materials were furnished by the plaintiff to Dreher, and it is admitted that the amount claimed by the plaintiff is due and owing to it from Dreher, the only question being whether or not the notice required under section 3 of the above-quoted act was prematurely given so as to defeat the plaintiff's suit.
"The act requires that the corporation furnishing any material shall `within eighty days after the acceptance thereof by the duly authorized board or officers' of the municipality, `furnish the sureties on said bond a statement of the amount due to any such * * * corporation.' In this case it is admitted that the statement was furnished on May 15th, 1923, and that the work was not accepted by the municipality until July 18th, 1923.
"This question has been decided by the Supreme Court in the very recent opinion in the suit of Franklin Lumber Co. v. Globe Indemnity Co., 102 N.J.L. 9 , which holds that a statement furnished prior to the acceptance of the work by the municipality is not a compliance with the act, and that where it appears that such statement was furnished prior to such acceptance the plaintiff cannot recover. That is decisive of this case, and judgment is therefore given in favor of the defendants."
For the appellant, M. Casewell Heine.
For the respondent Maryland Casualty Company, Levitan, Levitan Auerbach.
The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by Judge Dungan in the Circuit Court.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, PARKER, KALISCH, BLACK, KATZENBACH, CAMPBELL, LLOYD, WHITE, VAN BUSKIRK, McGLENNON, KAYS, HETFIELD, DEAR, JJ. 15.
For reversal — None.