On appeal from the Supreme Court.
For the appellant, Hobart & Minard and Ralph E. Cooper.
For the respondent, Harrison & Roche.
The opinion of the court was delivered by
DONGES, J. The present action was instituted by the plaintiff against the defendant upon a bond given by one David Petruzziello, as principal, and the defendant, as surety, to the township of Millburn. The case was tried before Circuit Judge Porter without a jury, and resulted in a judgment in favor of plaintiff, from which judgment the defendant appeals.
Petruzziello, on September 29th, 1926, contracted with the township of Millburn to improve a public road. On the same day, the appellant entered into a bond, as surety for the contractor, the bond running to the township of Millburn, and being for the benefit of all persons furnishing material or performing labor and to secure payment of the claims of such materialmen and laborers. It is admitted that the plaintiff-respondent furnished materials to Petruzziello for the work for which it was not paid.
The statute under which the bond was given and upon which plaintiff relied for a recovery is chapter 75 of the laws of 1918 (Pamph. L., p. 204), the third paragraph of which provides:
"3. Any person, firm or corporation to whom any money shall be due on account of having performed any labor, or furnished any material in the construction, erection, alteration or repair of any such building, work or improvement, within eighty (80) days after the acceptance thereof by the duly authorized board or officer, shall furnish the sureties on said bond a statement of the amount due to any such person, firm or corporation. No suit shall be brought against said sureties on said bond until the expiration of sixty (60) days after the furnishing of said statements. If said indebtedness shall not be paid in full at the expiration of said sixty days, said person, firm or corporation, may bring an action in his own name upon such bond, said action to be commenced within one year from the date of the acceptance of said building, work or improvement."
The trial judge found that on December 24th, 1928, the plaintiff furnished to defendant a statement of the amount
due to plaintiff for materials furnished to Petruzziello and used in said work and that the work was accepted by the township on December 17th, 1928. The present suit was instituted on March 7th, 1929, more than sixty days after the furnishing of said statement to the defendant.
From time to time, as the work progressed, the contractor received certificates from the township engineer and received eighty per cent. of the amounts of such estimates of completed work. A final certificate was furnished by the township engineer under date of May 11th, 1928, and on May 15th, 1928, the township of Millburn by its warrant paid to the contractor the amount of the estimate, less five per cent. to be retained to cover necessary maintenance for one year, in accordance with the terms of the contract. On the draft of the township committee covering ...