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Johnson Service Co. v. American Employers'' Insurance Co.

Decided: October 5, 1934.

JOHNSON SERVICE COMPANY, A CORPORATION, PLAINTIFF-RESPONDENT,
v.
AMERICAN EMPLOYERS' INSURANCE COMPANY, A CORPORATION, DEFENDANT-APPELLANT



On appeal from a judgment of the Supreme Court (Essex Circuit).

For the appellant, Cox & Walburg (William H. D. Cox, of counsel).

For the respondent, Child & Shipman (Jehiel G. Shipman and Everett M. Scherer, on the brief).

Trenchard

The opinion of the court was delivered by

TRENCHARD, J. This action was brought upon a bond given by the Daniel McGrath Company as principal and the

defendant below as surety to the board of education of the borough of Haledon, in accordance with chapter 75 of the laws of 1918 (page 203).

The McGrath company entered into a contract to do all the work and furnish all the materials necessary for the heating and ventilating work in connection with the construction of a new public school building for the board of education. The plaintiff below furnished labor and materials to the McGrath company, the general contractor, which went into the improvement which was the subject-matter of such contract. Because of the failure of the general contractor to pay for the same, this action was brought against the defendant as surety on the bond.

The plaintiff moved to strike out the defendant's answer as in part sham and in part frivolous and as constituting no legal defense to the complaint. Judge Porter granted the motion.

We see no reason for disturbing the consequent judgment.

The defendant in its answer averred that "on or about the 20th day of July, 1932, the board of education of the borough of Haledon by resolution formally accepted the work contracted for with the said board of education of the borough of Haledon by the said Daniel McGrath Company;" that "no notice of claim or statement of claim of the plaintiff was filed with the defendant company prior to or within eighty days after the said acceptance of the said work contracted for by the said Daniel McGrath Company by the board of education," and that suit was not instituted within one year after that acceptance.

Therefore, we must determine whether or not the resolution of July 20th, 1932, was an acceptance of the work ...


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