Opinion
03-01-1910
HOWELL LUMBER CO. v. NEW BRUNSWICK et al.
Warren R. Schenck, for complainant. Robert Adrain, for demurrants.
Bill by the Howell Lumber Company against New Brunswick and others. On demurrer to bill. Overruled.
Warren R. Schenck, for complainant.
Robert Adrain, for demurrants.
HOWELL, V. C. The bill in this case is filed to foreclose a lien under the municipalities lien law of 1892, as amended in 1909. The act of 1892 merely required that the lien should be filed with certain specified officers of the municipality. P. L. 1892, p. 369. This act was amended in 1909 (P. L. 1909, p. 260) by requiring that at the time of serving the notice the claimant should file with the financial officer of the municipality a bond for a certain amount, conditioned for the payment of interest to the contractor in the event of the failure of the claimant to proceed according to the statute. This act also provides that nothing contained in it shall affect the validity of claims or liens upon moneys due or to grow due under contracts made prior to the passage of the act, but it provided that all the proceedings to enforce such liens should be subject to the provision of the amending statute so far as the same may be applicable.
The contract in this case was made between the city of New Brunswick and one James H. Sheehan on or about April 3, 1908, and it provided for the construction of a sewer in the city of New Brunswick, for the construction of which the complainant sold materials to the contractor which were not paid for. He filed liens therefor on June 14, and June 24, 1909. The city has demurred to the bill on several grounds, but at the argument only one ground was pressed; that was that the claimant in this case had not filed a bond with his claim, as required by the act of 1909, and claiming, therefore, that the claimant had not perfected its lien. I think this is a mistaken view of the case. Theamending act of 1909 clearly exempts from its operation claims arising out of contracts made by municipalities prior to the passage of the act. The only provision which can be insisted upon, and in fact the only one that was insisted upon at the argument in behalf of the city, was that the exemption was practically nullified by the requirement that all the "proceedings to enforce" any such claims or liens should be subject to the provisions of the amending act, and it was argued that the words "proceedings to enforce any such claims," etc., included the filing of the claim itself. Ordinarily the words "proceedings to enforce" would mean an action in a court or before a proper tribunal to foreclose the lien. The situation is similar to that of the general mechanics' lien, law, to section 18 of which I call attention of counsel. It is there provided that when a claim is filed according to the act upon any lien created thereby, the same may be enforced by suit, etc., clearly distinguishing between the steps taken to acquire or perfect a lien and the steps taken to enforce or foreclose it. In the statute in question the words are "proceedings to enforce any such claims." Those words contemplate (1) that there shall be a right out of which a lien may grow; (2) that such Hen may be perfected in accordance with the terms of the statute; and (3) that there shall be an action or a proceeding or a suit instituted to enforce the perfected lien, the first two being ministerial acts, and the latter being a judicial one. In Erwin v. United States (D. C.) 37 Fed. 470, 2 L. R. A. 229, it was said: "in its general acceptation 'proceeding' means the form in which actions are to be brought and defended, the manner of intervening in suits, of conducting them, the mode of deciding them, of opposing judgments, and of executing judgment." In Morewood v. Hollister, 6 N. Y. 309, it was declared that the term "proceedings" in its more general sense in law meant all steps or measures adopted in the prosecution or defense of an action. The very words of the statute in question seem to draw a distinction between the act of the claimant in putting his claim on record and his proceedings to enforce such claim when it shall have been duly perfected.
I am therefore of the opinion that the demurrer is bad, and must be overruled, with costs.