On rule to show cause why mandamus should not issue.
For the relator, Paul C. Kemeny.
For the defendant, Walter D. Van Riper, Attorney-General, and Sackett M. Dickinson, Assistant Deputy Attorney-General.
Before Case, Chief Justice, and Justices Heher and Colie.
The opinion of the court was delivered by
COLIE, J. This is an application to the court for a writ of mandamus directing the State Highway Commissioner "to formally enter into the minutes of the said New Jersey State Highway Department in writing a final, complete and unconditional acceptance" of a certain grade crossing elimination project in Middlesex County. In lieu of depositions, leave to take which was granted in the rule, the facts were stipulated and it appears that a contract for the project was awarded to the Hogan-Gaul Construction Company in 1941. In February, 1942, the State Highway Commissioner received a report from the State Highway engineer that a major portion of the work on the contract was completed, whereupon
the Commissioner authorized semi-final payment. On October 28th, 1942, the official minute book of the State Highway Department contained the following item: "The Commissioner accepted the completed work on the contract of the Hogan-Gaul Construction Company for construction of Grade Crossing Elimination on the C.R.R. of New Jersey Railroad at West Avenue, Sewaren, and authorized the making of final payment thereon when the necessary formalities have been observed. It was further directed that the Central Railroad Company and the Board of Freeholders of Middlesex County be advised of this action in order that they may arrange for proper maintenance of the project in accordance with the agreement dated September 5th, 1940." Under date of April 12th, 1943, the official minute book of the State Highway Department contained the following item relative to the same project:
"Whereas, the State Highway Commissioner on October 28th, 1942, accepted the completed work on the contract of the Hogan-Gaul Construction Company, for the construction of the grade crossing elimination on West Avenue, Sewaren, at the C.R.R. of New Jersey, and
"Whereas, since that time the contractor has refused to submit the final certificate covering the work which had been completed, as required by Article 1.8.6 of the specifications and contract, and
"Whereas, on March 24th, 1943, the contractor was notified by registered mail that unless he took immediate steps to complete the project, it would be necessary to declare an abandonment thereof,
"It is hereby ordered, that effective this 29th day of March, 1943, the project for the construction of the grade crossing elimination on West Avenue, Sewaren, at the C.R.R. of New Jersey is declared abandoned, and that the contractor, Hogan-Gaul Construction Company, and the surety on the contract Indemnity Insurance Company of North America, be advised that the project has been abandoned, and
"It is further ordered, that the surety, Indemnity Insurance Company of North America, be called upon to complete the project in accordance with the provisions ...