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Middlesex Concrete Products and Excavating Corp. v. Carteret Industrial Association

Decided: June 4, 1962.


For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Haneman, J.


Plaintiffs filed suit seeking recovery for an alleged conspiracy by defendants to commit tortious interference with their contractual rights and economic relations.

One of the defendants named in the complaint, Malcolm Baxter, was not served and is therefore not before the court. A second defendant, Philip Streander, filed an answer setting up privilege as a defense and moved for a summary judgment. The motion was granted and affirmed on appeal. Middlesex Concrete, etc. v. Carteret Industrial Ass'n., 68 N.J. Super. 85 (App. Div. 1961). No appeal

from that determination has been taken. The remaining defendants having filed answers, also moved for judgment prior to trial, either (1) for dismissal in that the complaint failed to state a claim upon which relief could be granted, or (2) for summary judgment in that there palpably was no issue as to any material fact and defendants were entitled to a judgment as a matter of law. Argument thereon was deferred pending appeal on the Streander motion. After the decision in that case the motion of the remaining defendants for judgment was granted upon consideration by the trial court of the pleadings, affidavits and depositions. (Reference hereafter to defendants shall include only these remaining defendants.) Plaintiffs appealed to the Appellate Division and this court certified the same before argument there, upon its own motion. R.R. 1:10-1(a).

The facts gleaned from the above sources, viewed in the light most favorable to plaintiffs, exhibit that:

Plaintiffs, Middlesex Concrete Products and Excavating Corp. (Middlesex) and Abraham and Martin Neiss are, respectively, a New Jersey corporation engaged in the general contracting business and the sole owners of its stock.

Defendant, The Carteret Industrial Association (CIA) is a corporation not for pecuniary profit, whose members are the nine corporate defendants who operate large industrial plants in the Borough of Carteret (Carteret). The total value of the holdings of the corporations as assessed by Carteret is $7,622,195 which represents 56% of the total assessed value of the ratables in the municipality. Defendants Harry A. Hennessey and Robert T. Walsh are, respectively, the secretary of CIA, from 1919 to 1945 and from January 1, 1957 to date, and the secretary of CIA from 1945 through 1956. Defendant Russell E. Watson, a member of the bar of this State, was counsel, agent and representative of CIA and subsequently special counsel for Carteret.

Sometime in 1942 the Interstate Sanitation Commission directed Carteret to take steps to prevent discharge of

untreated sewage into the bordering coastal waters. Eight years and some court proceedings later, the municipal officials concluded that a sewage system, treatment and disposal plant would have to be constructed. They retained an engineer, Louis P. Booz, to prepare plans and specifications for the work and in the latter part of 1950 he supplied Carteret with a cost estimate for the entire project in the amount of $1,140,000.

Walsh, as secretary of CIA, was in constant contact with the Mayor of Carteret concerning the sewer project from November 21, 1950, at which time he had received a copy of the engineer's cost estimate. Walsh objected to the proposed improvement during a meeting of the governing body at which was adopted the ordinance providing $1,140,000 as financing for the project. Objection was upon the ground that a more economical method of sewage disposal would be a contract for such services with an adjoining municipality with established facilities.

Several days before August 16, 1951, the date advertised for the opening of bids on the construction work, Booz filed a revised estimate in the amount of $2,310,000, which estimate was furnished by Carteret to Walsh. Two bids were received, that of Middlesex in the amount of $2,224,232.50 and that of Horn Construction Company in the amount of $2,987,568. The mayor, being concerned at the difference of $750,000 between the bids, requested Walsh to check the responsibility of both bidders and to analyze the bid of Middlesex. Walsh reported that the bidders were legitimate contractors and that a civil engineer employed by one of the corporate defendants who had examined the unit bid prices of Middlesex stated that the bid was very reasonable and recommended the award of the contract to Middlesex.

After the award of the contract to Middlesex, CIA requested and was granted permission to employ an independent inspector at its own cost to check the progress of the work. Such inspector was thereafter employed.

The contract provided, inter alia, that Middlesex should be paid in monthly installments to the extent of 90% of the work actually completed and certified by the borough engineer as having been completed. The balance of 10% was to be retained until the engineer certified that the entire job had been completely performed, whereupon 5% was to be paid within thirty days and 5% one year ...

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