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Middlesex Concrete Products and Excavating Corp. v. Borough of Carteret

Decided: October 1, 1953.

MIDDLESEX CONCRETE PRODUCTS AND EXCAVATING CORPORATION, A NEW JERSEY CORPORATION, PLAINTIFF,
v.
THE BOROUGH OF CARTERET IN THE COUNTY OF MIDDLESEX, A MUNICIPAL CORPORATION, AND LOUIS P. BOOZ, DEFENDANTS; UNITED STATES METALS REFINING COMPANY, A NEW JERSEY CORPORATION, FOSTER WHEELER CORPORATION, A NEW YORK CORPORATION, THE AMERICAN AGRICULTURAL CHEMICAL COMPANY, A DELAWARE CORPORATION, THE AMERICAN OIL COMPANY, A MARYLAND CORPORATION, GENERAL AMERICAN TRANSPORTATION CORP., A NEW YORK CORPORATION, GEO. D. EMERY CO., A MAINE CORPORATION, FOOD MACHINERY AND CHEMICAL CORPORATION, A DELAWARE CORPORATION, BENJAMIN MOORE & CO., A NEW JERSEY CORPORATION, VIRGINIA-CAROLINA CHEMICAL CORPORATION, A VIRGINIA CORPORATION, STEVE BABICS, STEVE BABICS, JR., FRANK AND JOSEPHINE CURCY, SIMON AND VELECIA DELI, EDWARD AND MARY HELLEY, JULIA AND AARON KOVACS, MARY KUBICKA, JULIUS AND HELEN POPOVICS, PAUL PROKOP, HARRY W. AND FLORENCE RAPP, FRANK TOTH, STEPHEN AND MARY FABIAN, FRANK S. AND MARY R. TOTH, GEORGE TRAVOSTINO AND GEORGE AND VERONA YUKASZ, APPLICANTS FOR INTERVENTION



Morris, J.c.c.

Morris

This is a motion by the above applicants for leave to intervene as defendants in the within action in order to assert certain defenses. The motion is made under R.R. 4:37-1, R.R. 4:37-3, R.R. 4:37-4 and N.J.S.A. 2 A:15-19. The corporate applicants are the owners of manufacturing plants situated in the Borough of Carteret, Middlesex County, and the aggregate assessment of the corporate applicants equals 56.26% of the total net borough assessment. The individual applicants equal .23% of the total net borough assessments and the aggregate assessments of all said applicants equal approximately 56.5% of the total net borough assessments.

This suit arises out of a contract between the borough and the plaintiff for the construction of certain sewers, pumping stations and sewage treatment plant. The defendant Booz was the consulting engineer retained by the borough for the construction of said project. The plaintiff sues the defendant alleging certain moneys due under the terms of

the contract and also alleges certain other damages caused by certain breaches or other defaults made by the borough and/or its consulting engineer. The statute, N.J.S.A. 2 A:15-19, reads as follows:

"When, in an action by or against a county or municipality, if in the opinion of the court the interests of the county or municipality would be promoted thereby, the court may, upon terms, allow a taxpayer and resident of the county or municipality to intervene in the action on behalf of and prosecute or defend the same in the name of the county or municipality."

R.R. 4:37-1 reads as follows:

"Upon timely application anyone shall be permitted to intervene in an action: (a) when the representation of the applicant's interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action; or (b) when the applicant is so situated as to be adversely affected by a distribution or other disposition of property which is in the custody or subject to the control or disposition of the court or an officer thereof; or (c) when the applicant is charged as a particeps criminis in an action for divorce or nullity of marriage."

R.R. 4:37-3 reads as follows:

"Upon timely application anyone may be permitted to intervene in an action when an applicant's claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a state or federal governmental officer or agency, or upon any regulation, order, requirement or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties."

R.R. 4:37-4 reads as follows:

"A person desiring to intervene shall serve a motion to intervene upon all parties affected thereby. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought."

The former statute, R.S. 2:27-33, provides substantially the same as N.J.S.A. 2 A:15-19. The ...


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