On appeal from a judgment of the Supreme Court.
For the appellant and cross-respondent, Samuel Rosenblatt.
For the respondent and cross-appellant, Warren Dixon, Jr.
The opinion of the court was delivered by
HEHER, J. The complaint is in four counts, only two of which are involved in this appeal. The trial judge directed a verdict for plaintiff on the third count and a verdict for
defendant on the fourth count. These rulings constitute the subject-matter of the cross-appeals.
By the third count, a subcontractor pleads a cause of action against the owner on a stop-notice served and filed on October 14th, 1941, under R.S. 2:60-116; 2:60-118. The defendant owner interposed, inter alia, the plea of nil debet; and one of the questions mooted at the trial was whether the owner had made advance payments for which it was liable under R.S. 2:60-124. The trial judge resolved it in the affirmative as a matter of law and therefore directed a verdict for plaintiff; and therein he fell into error.
The principal contract was made on May 29th, 1941. It provided for the construction of four duplex houses (eight families) and attached garages for the defendant owner on or before the ensuing September 1st. It was filed on June 2d, 1941, pursuant to section 2:60-115. The contract price was $30,000, subject to an allowance of $5,064 for certain materials and equipment to be supplied by the owner. There was a provision for "progress payments." The owner undertook to pay the contract price as follows: "On or about the 1st and 15th day of each month 85 per cent. of the value, based on the contract prices, of labor and materials incorporated in the work and of materials suitably stored at the site thereof up to that day of that month, as estimated by the architect, less the aggregate of previous payments; and upon substantial completion of the entire work, a sum sufficient to increase the total payments to 85 per cent. of the contract price. Final payment shall be due 30 days after substantial completion of the work provided the work be then fully completed and the contract fully performed."
By contract with the general contractor, plaintiff agreed to install the heating units for $2,160. It maintains that it fully performed the subcontract; and it seeks the recovery of $1,660, the balance of the contract price remaining unpaid.
The general contractor discontinued work before full performance of its contract; and the buildings were completed by another contractor engaged by the owner. The proofs established that the moneys paid to the general contractor, and for completion after its default, are in excess of the contract
price; and the question is whether there were payments to the general contractor "in advance of ...