On appeal from the Supreme Court, whose per curiam is printed in 8 N.J. Mis. R. 544.
For the respondent, Heller & Boss (Aaron Heller, of counsel).
For the appellant, Filbert L. Rosenstein.
The opinion of the court was delivered by
KAYS, J. This is an appeal from the New Jersey Supreme Court. The suit was instituted in the Passaic County Circuit Court by the plaintiff, S. Kosson & Sons, a corporation, against Martin D. Harris, defendant. The amount involved was $1,770. The action was based on a written contract made between S. Kosson & Sons, the plaintiff below, and the Roman Realty & Construction Company, another corporation, the payment of the consideration of which said contract was alleged to be guaranteed in writing by the defendant, Martin D. Harris. After answer was filed by defendant a motion was made to strike out the answer on the ground that the same was sham and frivolous and filed for the purpose of delay. The learned Circuit Court judge, who heard the motion based upon the affidavits, struck out the answer and the defendant appealed to the New Jersey Supreme Court which sustained the ruling of the Circuit Court. The order of the learned trial judge is based on the admission of the defendant below that his guaranty was given when the plaintiff refused to perform its contract unless and until the payment of the consideration for such contract was guaranteed or secured.
The contract between the plaintiff and the Roman Realty & Construction Company was for the installation of plate glass together with the necessary copper frames and sills, panels and show windows for certain store fronts situate on Springfield avenue, Irvington, New Jersey. The contract was dated April 5th, 1928, and was in the following language:
"S. KOSSON & SONS, 149 Second St., Passaic, N.J.
I, the undersigned, hereby order set for job at Springfield avenue and Forty-second street, Irvington, New Jersey, the following:
Plate glass for store fronts, returns and store entrance doors, copper prismatic glass for upper fronts, inside set Kalemin copper frames with vent, sills, also copper panels below show windows with grill in each window for the sum of eighteen hundred fifty ($1,850) dollars to be paid after completion of work by ninety-day note with interest. Endorsed by me personally.
It is expressly agreed that this order cannot be countermanded by me and that this contract covers all ...