For the relator, Kristeller & Zucker (Saul J. Zucker.)
For the respondent, Harold D. Green and Joseph Coult.
Before Brogan, Chief Justice, and Justices Bodine and Colie.
The opinion of the court was delivered by
BODINE, J. This case comes before us on a demurrer to an alternative writ of mandamus.
The facts in the case are fully stated in the opinion of this court in Williamsport Planing Mill Co. v. Maryland Casualty Co., 129 N.J.L. 333.
The Board of Education of Paterson awarded a contract for the construction of a public school in that city. The contractor became insolvent and this court held that there had not been a sufficient acceptance of the building by a resolution of the Board of Education of July 11th, 1940, to justify an action on the contractor's bond. It followed that the relator here could not then maintain an action against the contractor under the provisions of law to be found in N.J.S.A. 2:60-207 et seq. Yale & Towne Manufacturing Co. v. Aetna Casualty, &c., Co., 110 N.J.L. 592; John P. Callaghan, Inc., v. Continental Casualty Co., Id. 390; Johnson Service Co. v. American Employers' Insurance Co., 113 Id. 494; Collins v. Metropolitan Casualty Insurance Co., 114 Id. 93.
The demurrer challenges the right of the relator, a subcontractor, to compel by mandamus acceptance of the building by the Board, if a proper case can be made out. If the relator cannot so do, it is without a remedy upon the bond given in order to secure payment for the materials furnished upon the work. Monahan v. Seaboard Surety Co., 126 N.J.L. 148.
Although the bond is primarily to secure the public it is, secondarily, for the benefit of sub-contractors furnishing labor and materials upon a public work. Newman v. Maryland Casualty Co., 112 N.J.L. 122.
The demurrer must be overruled. The Board of Education should make an adequate return. By evasive action it will not be permitted to defeat a sub-contractor's right against the surety upon a contract made pursuant to the statute.
The demurrer is overruled, ...