Bay City Plumbing & Heating Supply, Inc. v. Ace Contracting Co., 20.

• Citation: 200 A. 557
• Decision Date: 07 July 1938
• Docket Number: No. 20.,20.
• Parties: BAY CITY PLUMBING & HEATING SUPPLY, Inc., v. ACE CONTRACTING CO. et al.
• Court: United States State Supreme Court (New Jersey)

200 A. 557

BAY CITY PLUMBING & HEATING SUPPLY, Inc.,

v. ACE CONTRACTING CO. et al.

No. 20.

Supreme Court of New Jersey.

July 7, 1938.

Appeal from Circuit Court, Hudson County; Thomas Brown, Judge.

Mechanic's Hen action by the Bay City Plumbing & Heating Supply, Inc., against the Ace Contracting Company and others. From an order striking its complaint as sham, plaintiff appeals.

Reversed.

Argued May term, 1938, before BROGAN, C J., and BODINE and HEHER, JJ.

Maurice C. Brigadier, of Jersey City, for plaintiff-appellant. McDermott, Enright & Carpenter, of Jersey City, for defendants-appellees Henry A. Gaede and Frederick Cella.

BODINE, Justice.

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The plaintiff appeals from an order striking its complaint as sham in a mechanic's lien action. The notice, in compliance with R.S. 2:60-113, charges Rosa and Antonio L. Cella and Louis Cella as the persons for whom the supplied materials were to be furnished. It was admitted that Louis J. Cella was the general agent of Rosa Cella with full power to order materials and supplies at her expense. His affidavit is a denial that he ordered the materials and supplies.

The affidavits filed on behalf of the plaintiff, however, assert that it was unwilling to furnish materials to the contractor engaged in making alteration to the Cella property, but that the materials in question were furnished upon the request of Louis J. Cella, and upon his promise that the payment would be made, and that no goods were furnished till the notice was filed. If the facts be as the affidavits upon behalf of the plaintiff show, the complaint was not sham. It should, therefore, not have been struck.

The judgment will be reversed.