LAWRENCE v. NEISS, 141 N.J. Eq. 348 (1948)

57 A.2d 505

ALONZO W. LAWRENCE et al., appellants, v. ABRAHAM J. NEISS et al., respondents.

Court of Errors and Appeals.Submitted October 31st, 1947.
Decided January 29th, 1948.

The binding materials used by the respondent contractor as a base in paving the city street is in accordance with the contract and specifications for the work. Denial of injunction affirmed.

On appeal from an order of the Court of Chancery, in which court the following opinion was filed:

“On the return of the order to show cause in this matter I have considered the answering affidavits and the replying affidavits.

“The complaint in substance is that the binder being used in the paving of Madison Avenue in the City of Rahway is improper in that the contractor used sand or loam instead of stone screenings or gravel as called for by the specifications.

“The defendants’ answering affidavits are generally to the effect that the binding materials used as a base for the pavement is according to the contract and specifications for the work. The affiants who supply this proof are Charles S. Bush, an engineer of 40 years’ standing; Kenneth C. Ritchie, an engineer of 25 years’ standing, and Leslie D. Long, chief engineer of the Newark Testing Laboratories, and the defendant, Abraham J. Neiss, the contractor.

“I do not find from the proof before me that the contractor was required to use a binder of stone screenings or gravel. The city reserved the right to order omission of any portion of the work or materials and to make alterations, provided such alterations, in the opinion of the engineer, are consistent with the general nature of the work. It appears that the city engineer has permitted `a bank sand’ to be used on a portion

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of the roadway as a binder in the base course of the pavement in place of the trap rock stone dust specified. This, according to the specifications, the engineer could do.

“Injunction denied.”

Messrs. Hyer Armstrong (Mr. David Armstrong, of counsel), for the appellants.

Messrs. Kanter Kanter (Mr. Elias A. Kanter, of counsel), for the respondents.

Mr. Ludwig H. Schneider (Mr. William S. Gurkin, of counsel), for the City of Rahway.

PER CURIAM.

The order appealed from is affirmed, for the reasons stated in the opinion filed in the court below.

For affirmance — THE CHIEF-JUSTICE, BODINE, DONGES, HEHER, COLIE, WACHENFELD, EASTWOOD, BURLING, WELLS, DILL, FREUND, McLEAN, SCHETTINO, JJ. 13.

For reversal — None.