Opinion
11-23-1926
WEST JERSEY & S. S. R. CO. v. COUNTY OF CAPE MAY et al.
Bourgeois & Coulomb, of Atlantic City, for complainant. Palmer M. Way, and French & Richards, all of Camden, for defendant County of Cape May. Mark Sooy, of Wildwood, for defendants Beckmann, Grace, Singley's Garage. Cecil Ober & Isreal T. Woolson, Morris, Wheeler & Co., Anglesea Food Supply Co., Cusack Hardware Co., McCabe, Endicott, Frith, Ryan, and Camp.
Municipal mechanic's lien suit by the West Jersey & Seashore Railroad Company against the County of Cape May and others. On final hearing of questions of law. Questions ruled in accordance with opinion.
Bourgeois & Coulomb, of Atlantic City, for complainant.
Palmer M. Way, and French & Richards, all of Camden, for defendant County of Cape May.
Mark Sooy, of Wildwood, for defendants Beckmann, Grace, Singley's Garage. Cecil Ober & Isreal T. Woolson, Morris, Wheeler & Co., Anglesea Food Supply Co., Cusack Hardware Co., McCabe, Endicott, Frith, Ryan, and Camp.
LNGERSOLL, Vice Chancellor. This is a municipal mechanic's lien suit in connection with the Grassy Sound bridge. It was instituted by the railroad company to enforce a claim for freight upon materials shipped to Anglesea and Wildwood Junction.
At the final hearing of the cause, a witness was examined and cross-examined. A continuance of the hearing then being in order, it was arranged that, before any date be fixed, briefs be presented to the court upon the legal questions that have thus far arisen in the case, as a decision of such questions may make a further hearing unnecessary.
The defendants raise four legal questions to be determined, which will be considered in the order as presented.
I. Can a railroad company have a municipal lien for freight upon goods shipped, not to the bridge, but to stations a mile or so away, and there delivered to a person who happens to be the contractor?
In determining this question, the fact that the goods in question were used by the contractor in the erection of the building (bridge) in question must be conceded.
Under our statutes, a mechanic's lien claim suit may be maintained for the transportation and delivery of materials, as for labor performed for the erection and construction of a building. Davis v. Mial, 86 N. J. Law, 167, 90 A. 315, Ann. Cas. 1916E, 1028.
Union Traction Co. v. Kansas Casualty Co., 112 Kan. 774, 213 P. 169, 30 A. L. R. 464, holds that the freight charges of a traction company for transporting certain carloads of brick from the city of their manufacture to the city where the bricks were to be used for the paving of public streets are not lienable.
It is evident, however, that Davis v. Mial, supra, is conclusive that the transportation charges are subject for lien. The language of Judge Spear, as adopted by the Chancellor in the Court of Errors and Appeals is illuminating:
"When the manufacturer fixes his price at so much 'delivered at the building' does any one doubt that the price includes an allowance for cartage. In the case at bar it is sought to subject the building to a lien for labor performed in the erection and construction of the building because, had the transportation charges been included in the price of the goods, there could have been no doubt of the right to a lien. I am clear that such service constitutes labor performed for the erection and construction of a building."
The railroad company has therefore the right to lien for freight upon the goods in question.
II. Does the notice of claim filed by the railroad company meet all the statutory requirements for the creation of a valid lien?
This resolves itself to a question of fact, which I find in favor of the complainant.
III. Does the fact that the notice filed was incorrect and claimed too much money defeat the claim?
The notice claimed an item of $10 as freight, which as a matter of fact was an item for materials furnished. This was clearly an error, and the notice and claim were made in good faith, and the lien, therefore, does not fail. Camden Iron Works v. Camden, 64 N. J. Eq. 723, 52 A. 477.
IV. If the complainants ever had a lien under the municipal lien law, has it been preserved by bringing suit thereon within the statutory time?
Defendants cite Haughwout & Pomeroy v. Murphy, 22 N. J. Eq. 531; Haupt Co. v. Board of Education of Edgewater, 87 N. J. Eq. 362, 100 A. 337. In the latter case, the Court of Errors and Appeals in a per curiam opinion stated:
"* * * We think it enough to say that, when a lien is claimed, the suit is not begun until the subpoena is taken out."
In the former case, the question was the filing of lis pendens, and the court said:
"Before any statutory provision was made requiring notice of the pendency of the suit to be filed, in order to charge a subsequent purchaser from the defendant with notice of the litigation, it became the established practice that subpoena served and bill filed were necessary before the suit was considered as commenced." * * *
Suits in chancery are commenced by the Issuance and service of subpoena or the making of a bona fide attempt to serve it, after the bill has been filed. Del. River Q. & C. Co. v. Mercer Freeholders, 88 N. J. Eq. 506, at page 511, 103 A. 18, and cases therein cited. In this case Vice Chancellor Backes distinguishes the Lis Pendens Act (3 Comp. St. 1910, p. 3175) and the Municipal Lien Act (3 Comp. St. 1910, p. 3315).
Vice Chancellor Foster, in Buchanon & Smock Lumber Co. v.' Brower, 95 N. J. Eq. 422, at page 425, 123 A. 699, 700, says:
"This section of the act [Chancery Act, § 58 (1 Comp. St. 1910, p. 432)] does not, as counsel for the parties claim, change the rule of the cases that an action in chancery is begun when process issues.* * *"
Commencement (of an action) is marked by the issuance of subpoena after bill filed, provided the subpoena is instrumental, directly or indirectly, in bringing the defendant within the jurisdiction of the court. Lehigh Valley R. R, Co. v. Andrus, 91 N. J. Eq. 225, 109 A. 746.
It follows that a final determination must be had. If either party desires to take further testimony or to be further heard, a short day will be given.