On motion for entry of judgment for the plaintiff.
This is a motion for the entry of judgment for the plaintiff for the relief demanded in the complaint.
The pleadings, together with the other papers presented upon this motion, disclose that the plaintiff was a sub-contractor of Harris Heating, Inc., which company was in turn a sub-contractor of August Arace & Sons, the general contractor for heating and ventilating work on the addition to Junior High School No. 4, Bayway, in the City of Elizabeth.
The defendant is the surety on the performance bond furnished by the general contractor in conformity with the requirements of R.S. 2:60-207.
It is conceded that on or about January 31, 1949, the plaintiff furnished and delivered labor and materials to the value of $1,576.25 to Harris Heating, Inc., and that plaintiff has not been paid for the same.
In the complaint it is alleged that on May 10, 1951, the Board of Education of the City of Elizabeth accepted as completed the work done on the school building covered by the bond on which defendant is surety and that within 80 days thereafter the plaintiff furnished the defendant a statement of the amount due to plaintiff. The present action was instituted on September 19, 1951, and it is alleged in the complaint that the action was commenced within one year after the acceptance of the work by the board of education.
To this action on the bond the defendant sets up the following defenses: (1) that on September 8, 1949, the Board of Education of the City of Elizabeth accepted as completed the work on the addition to the school building covered by its bonds and that the plaintiff failed to furnish the defendant a statement of the amount due to plaintiff within 80 days thereafter and, (2) that the plaintiff failed to institute this action within one year from the date of the aforesaid acceptance.
R.S. 2:60-209 provides that:
"Any person to whom any money shall be due on account of having performed any labor or furnished any materials, provisions, provender or other supplies, or teams, fuels, oils, implements or machinery in, upon, for or about the construction, erection, alteration or repair of any public building or other public work or improvement, shall, at any time before the acceptance of such building, work or improvement by the duly authorized board or officer, or within eighty days thereafter, furnish the sureties on the bond required by this article a statement of the amount due to him.
No action shall be brought against any of the sureties on the bond required by this article until the expiration of eighty days after the acceptance of the building, work or ...