92 N.J. Eq. 329 | New York Court of Chancery | 1920
Gaetano Fortunato recovered a judgment in the Essex circuit court for $1,439.02 and costs, the balance due him on a contract for the erection of a building for the complainant Cicalese. He has paid the amount of the judgment into this court, and the struggle for it is between the attorney of Fortunato, for his compensation for sendees rendered in recovering the judgment, materialmen who filed stop-notices under the third section of the Mechanics’ Lien act (Comp. Stat. p. 3294) and a judgment creditor of Fortunato, the builder, under supplementary proceedings in aid of execution. Comp. Stat. p. 2249. The bill purports, to be one of interpleader, but it is not. However, as all
The first question is whether the attorney who' recovered the judgment, the fruits of which I am called u-pon to dispose of, is entitled to be compensated. The cause was litigated before a jury in the circuit court, and on appeal in. the supreme court and court of errors and appeals. The taxed costs in the three courts form part of the fund paid into this court. The attorney, of course, is entitled to the costs. Phillips v. MacKay, 54 N. J. Law 319. He is also' entitled to be compensated for his services under chapter 201, laws of 1914 (P. L. 1914 p. 410), which gives attorneys “a lien for compensation, upon his client’s cause of action, suit, claim or coruiter-claim.”
The statute says that the amount of compensation is to be determined by the court in which the judgment is recovered. On interpleader, I think, this court may fix the amount. I will allow $400 and the taxed costs, which will be first paid out of the fund to Mr. Pallitta, the attorney.
Three of the four stop-notices filed before the issuing of the execution on the judgment recovered by Frederick Schill & Company against the builder, are in compliance with the third section of the Mechanics’ Lien act, and are entitled to be next paid in the order of their service—Belmont Cornice and Skylight Works, $30; Frederick Schill & Company, $121, and Cook & Genung Company, $402.47. The stop-notice of the Essex Mosaic Tile Company is defective, in that it fails to state a demand upon the builder for payment and his refusal. Donnelly v. Johnes, 58 N. J. Eq. 442. The claim will be disallowed.
Frederick Schill & Company recovered a judgment against the builder in the Essex circuit court May 29th, 1918, for $1,439.02, and on the same day issued an execution. On June 7th, 1918, upon petition'to that court, an order for discovery in