Opinion
03-13-1929
WARSHAW v. DE MAYO.
Samuel Hilfman, of Passaic, for plaintiff. Nicholas Martini, of Passaic, for defendant.
Mechanic's lien suit by David Warshaw against Frank De Mayo. On motion to dismiss. Motion granted.
Samuel Hilfman, of Passaic, for plaintiff.
Nicholas Martini, of Passaic, for defendant.
PORTER, J. This is a suit on a mechanic's lien to recover a sum due for materials furnished. The last date on which material was furnished by the plaintiff for the building in question, as shown by the amended complaint, was on March 23, 1928. Summons was issued and suit commenced on July 23, 1928.
Section 18 of the statute provides (3 Comp. St. 1910, p. 3305), that no debt shall be a lien unless a lien claim is filed within four months from the date of the last work done or material furnished, nor be enforced unless the summons be issued within the said four months.
The defendant moves for a dismissal of the lien claim and suit on the ground that the statute has not been complied with, in that the claim was not filed nor summons issued within the four months' period.
Was July 23d within four months? I think not. Four full months expired on July 22d. July 23d was the beginning of the fifth month, and so not within the four months. For example, a person attains his majority on the last day of his twenty-first year, which is the day before his twenty-first birthday anniversary. On that day he is beginning his twenty-second year. Therefore, anything which is to be done during his minority must be completed on the day preceding his twenty-first birthday.
The motion to dismiss is granted.