Opinion
03-17-1926
DE MASI v. F. W. BOWDEN CO. et al.
P. C. Corbo, of Newark, for complainant. Wolber & Gilhooly, of Newark, for defendants.
(Syllabus by the Court.)
Suit by Michael De Masi against the F. W. Bowden Company and others to require defendants to interplead and for an injunction. On defendant's motion to strike the bill for want of equity. Motion granted.
P. C. Corbo, of Newark, for complainant.
Wolber & Gilhooly, of Newark, for defendants.
BACKES, V. C. Defendant moves to strike the bill for want of equity. The bill discloses that the complainant has in his hands $1,008.76 due from him to a contractor for the erection of a building, under written contract, duly filed; that on December 22, 1924, the Bowden Company served on him a notice in the nature of a stop notice, for $492.49, for materials and labor; that on February 16, 1924, defendant Brill served a like notice for $482.44; that thereafter other materialmen and laborers served wop notices; that the stop notices total $2,452.93; that Brill recovered a judgment against him July 11, 1925, in the First district court of Newark for the amount of his stop notice and that he threatens to collect it; that he is unable to determine which of the claimants to pay, and offers to pay the money into court, and he prays that the claimants interplead, and that Brill be enjoined from executing his judgment. The bill is defective, in that it does not allege that the stop notices recite a demand upon the contractor and his refusal to pay; but no point is made of that.
It is not a ground for interpleading claimants to a fund that the possessor is unable Co determine to which of them he should pay it. He must allege facts showing a conflict of claims, causing reasonable doubt. This the bill does not disclose except incidentally. In setting up the stop notices, it is alleged that they are for moneys due for material and labor furnished by the claimants to the contractor. There is no apportionment of the amounts due for labor and what for materials. As labor is entitled to preferential payment (3 C. S. p. 3298), that may be the cause of confusion; but no point is made of that either.
Under the third section of the Mechanics' Lien Law (3 Comp. St. p. 3294) stop notices operate as assignments to the claimants pro tanto of the moneys due from the owner to the contractor. They are payable in the order of priority of service, not pro rata. Bayonne Bldg. Association v. Williams, 43 A. 669, 59 N. J. Eq. 617. Recovery must be had at law. Commonwealth Roofing Co. v. Riccio, 87 A. 114, 81 N. J. Eq. 486. All available defenses must be made there. The judgment is general against the owner, and res judicata. Pusakowski v. Woodward Co., 103 A. 191, 87 N. J. Eq. 665. 'That there are no funds, or that they were preempted by prior stop notices, or that there was nothing due the claimants, or that they failed to comply with the statutory requirements, or any other matter that would defeat the stop notices as an assignment, are pleadable. The complainant had had his day in court. He cannot have a retrial in this court by forcing Brill to interplead. That would be the effect of a decree to interplead, for Brill again would be compelled to defend his stop notice against objections that were available to the complainant in the lawsuit, and which by his bill he invites Brill's co-claimants to make.
Motion granted.