STANDARD ACCIDENT INS. CO. v. HAMILTON TWP, N.J., Judgment, Law, casemine.com

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Advocates

Messrs. Schotland, Harrison Schotland ( Mr. John E. Toolan and Mr. Louis Auerbacher, Jr., of counsel), for the defendant-appellant Spiniello Construction Company. Messrs. Minton Dinsmore ( Mr. H. Collin Minton, Jr., of counsel), for the defendant-respondent-cross-appellant, Township of Hamilton.

Judges

PER CURIAM.

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STANDARD ACCIDENT INSURANCE COMPANY, assignee of Calabro Construction Co.,Inc., complainant-appellant, v. TOWNSHIP OF HAMILTON, a municipalcorporation, defendant-respondent-cross-appellant, and SPINIELLOCONSTRUCTION COMPANY, defendant-appellant.

Complainant-appellant has not sustained the burden of proving that the contractor is entitled under the contract in this case, to additional compensation for sheathing left in place because of unstable foundation encountered in the course of construction.

PER CURIAM.

The appellant contractor maintains that it is entitled, under the contract, to compensation "over and above the lump sum bid for sheathing `furnished and placed' where `unstable foundations' were encountered in the construction of the sewer," particularly as to that portion assertedly "ordered to be left in place by the engineer;" and the cross-appellant alleges error in the dismissal of its counter-claim for the recovery of $5,350 "as liquidated damages assessable under the contract" by reason of the non-completion of the construction work within the stipulated time.

We concur in the conclusions of the learned Vice-Chancellor in both these matters; and the decree is accordingly affirmed.

Granting that the contract provides for additional compensation "if the item of sheathing left in place was required to be increased, because of unstable foundation encountered," complainant-appellant has not sustained the onus probandi in this regard.

As to appellant's contention that there is no factual basis for the Vice-Chancellor's finding as to "the cost, at the site, of new lumber for sheathing," it suffices to say that that is in no sense a determinative circumstance.

For affirmance — THE CHIEF-JUSTICE, PARKER, CASE, DONGES, HEHER, PERSKIE, PORTER, COLIE, DEAR, WELLS, WOLFSKEIL, RAFFERTY, HAGUE, THOMPSON, JJ. 14.

For reversal — None.

STANDARD ACCIDENT INS. CO. v. HAMILTON TWP

STANDARD ACCIDENT INSURANCE COMPANY, assignee of Calabro Construction Co.,Inc., complainant-appellant, v. TOWNSHIP OF HAMILTON, a municipalcorporation, defendant-respondent-cross-appellant, and SPINIELLOCONSTRUCTION COMPANY, defendant-appellant.

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