
    BAY CITY PLUMBING AND HEATING SUPPLY, INCORPORATED, A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. ACE CONTRACTING COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, BUILDER, AND HENRY A. GAEDE AND FREDERICK CELLA, EXECUTORS UNDER THE LAST WILL AND TESTAMENT OF ROSA CELLA, DECEASED, DEFENDANTS-APPELLEES.
    Submitted May 3, 1938
    Decided July 7, 1938.
    Before Brogan, Chief Justice, and Justices Bodine and Heher.
    For the plaintiff-appellant, Maurice C. Brigadier.
    
    For Henry A. Gaede and Frederick Celia, McDermott, Enright & Carpenter.
    
   Bodine, J.

The plaintiff appeals from an order striking its complaint as sham in a mechanic’s lien action. The notice in compliance with Rev. Stat. 2 :60-113 charges Rosa and Antonio L. Celia and Louis Celia as the persons for whom the supplied materials were to be furnished. It was admitted that Louis J. Celia was the general agent of Rosa Celia 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 Celia property, bnt that the materials in question were furnished upon the request of Louis J. Celia, 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.  