Opinion
05-11-1905
BOROUGH OF ROSSELLE PARK v. MONTGOMERY et al.
Samuel Koestler and P. H. Gilhooly, for Mrs. Montgomery. Theodore C. English, for Hawke Stone Co. et al. H. H. Fryling, for Kirkpatrick Bros.
Interpleader suit by the borough of Rosselle Park against Robert I. Montgomery and others.
Samuel Koestler and P. H. Gilhooly, for Mrs. Montgomery. Theodore C. English, for Hawke Stone Co. et al. H. H. Fryling, for Kirkpatrick Bros.
STEVENS, V. C. This is an interpleader suit brought by complainant against certain persons who claim to have liens upon money which it owes on a paving contract. It is plain that Kirkpatrick Bros., the Hawke Stone Company, and the Lehigh Valley Railroad Company have lost whatever lien they may have had for the reason that they did not commence an action within the 90 days prescribed by section 4, p. 370, of the act of 1892 (Gen. St. p. 2078). Wheeler v. Almond, 46 N. J. Law, 161. The municipality cannot by any act on its part extend or revive a statutory lien which has expired.
I do not think the $600 draft amounts to an equitable assignment. It is negotiable, and is not payable out of a specific fund. Brill v. Tuttle, 81 N. Y. 454, 37 Am. Rep. 515; Supt. v. Heath, 15 N. J. Eq. 22; Kirtland v. Moore, 40 N. J. Eq. 106, 109, 2 Atl. 269.
As between the auditor in attachment and Mrs. Montgomery, claiming tinder the assignment of March 16, 1904, It would seem that the auditor has the prior right. It is admitted that the attachment proceeding is entirely regular, and Mrs. Montgomery is not in a position to insist, and does not insist, that the partnership of Montgomery Bros. consisted of Robert I. Montgomery and his brother. Her position is that it consisted of Robert I. Montgomery alone, and such is her proof. As to strangers the case might be otherwise.