Romano v. Borough of Metuchen, s. 32, 36.

• Decision Date: 25 April 1940
• Docket Number: Nos. 32, 36.,s. 32, 36.
• Citation: 124 N.J.L. 574,12 A.2d 680
• Parties: ROMANO et al. v. BOROUGH OF METUCHEN.
• Court: New Jersey Supreme Court

12 A.2d 680

124 N.J.L. 574

ROMANO et al.

v. BOROUGH OF METUCHEN.

Nos. 32, 36.

Court of Errors and Appeals of New Jersey.

April 25, 1940.

Appeal from Supreme Court.

Action by Charles Romano and Michael Saggese, partners, trading as Romano & Saggese, against the Borough of Metuchen, a municipal corporation of the county of Middlesex, to recover an alleged unpaid balance of the contract price for construction of a sewer and for extra work and material used in constructing the sewer, wherein defendant filed a counterclaim for damages. From an unsatisfactory judgment, both parties appeal.

Affirmed.

Thomas Brunetto, of Newark (Fred G. Stickel, Jr., of Newark, and John Milton, of Jersey City, of counsel), for plaintiffs-respondents.

Frederic M. P. Pearse, of Newark (Max Mehler, of Newark, of counsel), for defendant-appellant.

PER CURIAM.

This is an appeal by the defendant municipality from a judgment of the Supreme Court in favor of the plaintiffs in an action on contract. The plaintiffs, in 1924, contracted to build a sewer for the municipality. It was finished in 1926, as the plaintiffs contend, and the chief engineer gave the contractor a certificate of completion on October 11th of that year.

The complaint filed in the cause demanded payment for the unpaid balance of the contract price; also for extra work not specified in the contract, as well as for extra work on order of the defendant or its agent, the engineer; and for material "left in place" in excess of the quantities called for by the contract, and for sheathing.

The answer consists of a general denial that any money is due the plaintiffs; alleges there was no authorization for the extra work or material from the defendant or its engineer and then by way of counterclaim the defendant demanded damages alleging that the said sewer was not properly constructed because, as is alleged, it leaked in excess of the maximum seepage allowance fixed by the contract between the parties.

The matter was referred to a referee who recommended judgment for the plaintiffs for the balance due on the original contract. He found against the plaintiffs on all counts for extra work and determined also that the defendant should not recover on its counterclaims. The defendant had reserved its right to a trial by jury. The matter was then submitted to a circuit court judge for determination of the law and the facts. A jury was waived. The same record, i. e., the pleadings, exhibits and testimony adduced before...