Hazard v. Phoenix Woodworking Co.

• Decision Date: 22 June 1911
• Citation: 80 A. 456,78 N.J.E. 568
• Parties: HAZARD et al. v. PHOENIX WOODWORKING CO. et al.
• Court: New Jersey Supreme Court

80 A. 456

78 N.J.E. 568

HAZARD et al.

v. PHOENIX WOODWORKING CO. et al.

Court of Errors and Appeals of New Jersey.

June 22, 1911.

(Syllabus by the Court.)

Appeal from Court of Chancery.

Bill by Horace G. Hazard and others against the Phoenix Woodworking Company and others. Decree for defendants (75 Atl. 237), and complainants appeal. Affirmed.

French & Richards, for appellant .

Ward.

Joseph J. Summerill, for respondents Davidson and Dietrich. A. H. Swackhamer, for respondent Mayer.

PARKER, J. The controversy was over the unexpended balance of a building fund in the possession of the board of education of the borough of Swedesboro, arising out of a contract of that board with the Phoenix Woodworking Company for the erection of a school building. A number of claims were presented and bills tiled thereon under the provisions of the statute of 1892, known as the municipal lien act (Gen. St. p. 2078); the various suits were consolidated and the rights of the parties settled, subject to appeal, by the decree in the above-entitled cause. The amount available was $2,506, which the court of chancery, for reasons stated in the opinion of the vice chancellor, distributed by awarding (1) certain costs to the board of education; (2) to the complainant Davidson, $857.27; (3) to complainant Dietrich, $1,608.91; (4) to complainant Horner, $210.85; (5) to complainant Charles Warner Company, $1,058.98, with interest on said sums, respectively, and costs. It is evident that the Charles Warner Company, and in all probability Horner, will take nothing by the decree, as the first two claims, with the costs and interest, will fully absorb the amount to be distributed. As to Hazard & Co., Thomas P. Ward, and Louis Mayer, the bill was dismissed.

Horner appealed from the decree, but as this cause was submitted on briefs, and no brief was presented by him, we must consider his appeal abandoned, and this leads to a dismissal of that appeal.

Hazard & Co. likewise appealed, but the brief submitted for them is not signed by counsel, and hence cannot be considered. Leaver v. Kilmer, 54 Atl. 817; Duysters v. Crawford, .69 N. J. Law, 229, 54 Atl. 823. The result of this is that the Hazard appeal stands as though not moved, and under rule 17 of this court respondents may enter an order of affirmance on this appeal.

This leaves for consideration only the appeal of Ward. His claim was disallowed because the vice chancellor held that he had not fastened it upon the fund by...