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Kaveny v. Board of Commissioners

Decided: July 5, 1961.

MARTIN J. KAVENY, PLAINTIFF,
v.
BOARD OF COMMISSIONERS OF THE TOWN OF MONTCLAIR, JOSEPH D. ALLEN, JAMES A. WALSH, BOARD OF EDUCATION OF THE TOWN OF MONTCLAIR AND NEW JERSEY STATE BOARD OF EDUCATION, DEFENDANTS



Waugh, A.j.s.c.

Waugh

This is an action in lieu of prerogative writ (mandamus) wherein the plaintiff seeks to compel the defendant building inspector and plumbing inspector of the Town of Montclair to inspect the work on additions to an alteration of the Montclair High School, a public secondary school in the Town of Montclair, Essex County.

The matter is presented before the court on plaintiff's motion for summary judgment, a cross-motion by the

defendant State Board of Education for summary judgment, a motion by the defendant Board of Education of the Town of Montclair and the Board of Commissioners of the Town of Montclair to dismiss the complaint as not stating a claim upon which relief may be granted.

It is admitted that the Board of Education of the Town of Montclair commenced work on the construction of certain additions to and alteration of the Montclair High School, a public school. The buildings have not yet been completed. It is not denied that the plans and specifications for the improvements being made were approved by the State Board of Education as required by R.S. 18:11-8. No change in the plans or specifications have been made without the approval of the State Board of Education.

The Court has proof before it in the affidavit of George Crum, an inspector of school building construction employed by the Division of School Building Services, New Jersey State Department of Education, showing inspections of the Montclair school on March 27, 1961 and May 23, 1961. These inspections show compliance to date with the State Board's rules and regulations concerning plumbing and building construction (with one minor exception). That the inspections of Mr. Crum are supervised by the State Board is proven by the affidavit of Dr. Kenneth Woodbury, Assistant Commissioner in charge of the Division of Business and Finance of the New Jersey State Department of Education.

There is a sharp dispute as to whether or not the work is progressing without inspection by either the plumbing inspector and the building inspector of the Town of Montclair and without the proper supervision of these two departments. The plaintiff charges particularly that the plumbing work does not meet the requirements of the plumbing code of the Town of Montclair. The defendant Board of Education of the town specifically denies these allegations claiming that the building inspector and the plumbing inspector have voluntarily made periodic inspections of the work and

have found it to be superior to that required under the Montclair building code. In addition, the contract of the local board provides:

"Sub-paragraph (e) of Paragraph 10 of the General Conditions, entitled 'Surveys, Permits and Regulations,' which are applicable to all six contracts (see photocopy of page 16 hereto annexed) provides:

'The contractor shall give notices and comply with laws, ordinances, rules and regulations bearing on conduct of work as drawn and specified. If the contractor observes that drawings and specifications are at variance therewith, he shall promptly notify the architect in writing and adjust any necessary changes as provided in contract for changes in work. If the contractor performs any work knowing it to be contrary to such laws, ordinances, rules and regulations, and without such notice to the architect, he shall bear all costs arising therefrom.'

Sub-paragraph (a) of Paragraph 12 of said General Conditions, entitled 'Inspections and Tests,' (see photocopy of page 17 hereto annexed) provides:

'The contractor shall give written notice to the architect at least two weeks before plastering is started or any work is closed in so an inspection of all work in place can be made by the State Department of Education. Plastering work may not proceed until written approval is received by the architect from the State Department and forwarded to the contractor.'

The paragraph entitled 'Codes, Rules and Permits' of the specifications for the heating and ventilating contract (see photocopy of page HU-4 hereto annexed) provides:

'All work and materials shall be installed in accordance with all codes, laws, et cetera, made by governing bodies, including local, national and the National Board of Fire Underwriters. The contractor shall secure and pay for all permits, et cetera.'

The specifications for the plumbing work contract contains the following provisions (see photocopy of page P-1 annexed hereto):

' General Conditions:

All work of this contract shall be performed in accordance with requirements of the contract documents. In addition the following conditions shall apply specifically to the plumbing contractor.

(a) The plumbing contractor shall carefully read the aforementioned references and study the general construction plans and his proposal shall include all items whatsoever that may be necessary to complete the working and finished plumbing systems of the character and type specified.

(b) All work shall be done in strict accordance with the rules of the National Board of Fire Underwriters, the State Department of Education, and in full compliance with the requirements ...


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