80 N.J. Eq. 94 | New York Court of Chancery | 1912
It will be observed that three classes of claims are here involved : 1. Claims under orders issued by the contractor on the owner; these are first in date of issuance and service. 2. Claims filed under the Municipal Liens act; these are second in date of service. 3. A claim under the stop-notice provisions of the Mechanics' Lien act. This is last in date of service.
It is conceded by the three claimants who claim under the Municipal Liens act that the two claimants who hold orders are entitled to be paid from the fund before their claims can participate. This concession is in accordance with the decisions in Somers Brick Co. v. Souder, 70 N. J. Eq. (4 Robb.) 388, 394; S. C., 71 N. J. Eq. (1 Buch.) 759, 762; and Cope v. C. B. Walton Co., 77 N. J. Eq. (7 Buch.) 512, 517. The ground of these decisions is that the Municipal Liens act confers no inchoate lien on the fund in favor of laborers or materialmen prior to the service of a riotice of claim of lien pursuant to the act; an order by the contractor on the owner is therefore operative as an equitable assignment of the money due or to grow due under the contract to the amount specified in the order as against claims subsequently filed under the act.
It is also conceded by counsel representing the stop-notice claim under the Mechanics' Lien act that the three claims under notices served pursuant to the Municipal Liens act are entitled to be paid from the fund before his stop-notice claim. He claims, however, that his stop-notice entitles him to payment from the fund before the two orders are paid. It is manifestly impossible to give the orders precedence over the municipal liens
I am not aware that our court of last resort has been called upon to determine whether the stop-notice provisions of the Mechanics’ Lien act are applicable to a contract for the construction of a public building, or whether, if so applicable, such provisions have been superseded and in effect repealed as to public building contracts by the subsequent enactment of the Municipal Liens act. In Frank v. Freeholders of Hudson County, 39 N. J. Law (10 Vr.) 347, it was held by our supreme court that while a public building could not be subjected to a lien for labor or materials supplied in its construction, the provisions of the third section of the Mechanics’ Lien act touching stop-notices were operative to afford the remedy there given, if the contract should be filed by the municipality pursuant to the provisions of
But conceding, for present purposes, that the stop-notice provisions of the Mechanics’ Lien act were originally operative against public building contracts, and that the subsequent enactment of the Municipal Liens act was not operative to supersede or repeal such stop-notice provisions in their application to public
But whatever may be the force of the provisions of section 6 of the Mechanics’ Lien act, as amended by the revision of 1898, I am unable to reach the conclusion that the section can in any view be deemed effective to give such stop-notice precedence over
It is also contended in behalf of the stop-notice claimant that the last installment was not due when the stop-notice was served because of a clause in the contract which obligated the contractor to furnish evidence that all bills had' been paid before he could
I am also unable to adopt the views urged in behalf of the stop-notice claimant that a certain letter of recall written by tire owner was operative to impair the rights of the holders of one of the orders or that the other order was subject to a condition which destroyed its effect as an equitable assignment, pro tmto, of the fund.
I will advise an order directing distribution of the" fund by payment of the orders as first in priority, and the notices under the Municipal Liens act in the order of their dates as second. These payments will exhaust the fund.