109 N.J. Eq. 381 | N.J. Ct. of Ch. | 1931
The motion is to dismiss the bill to enforce a lien under the Municipal Mechanics' Lien act of 1918. Cum. Supp. Comp. Stat.p. 1859.
The bill shows that the defendant Magliaro owes the complainant $8,253.80 for work done on a public improvement for which Magliaro had the contract and upon which there remains due to him from the village of South Orange $4,485.41. The complainant's work was done between August 4th and December 13th, 1930. On July 13th, 1931, he filed the statutory notice of his claim and on October 20th, 1931, commenced this suit, all before the whole work to be performed by Magliaro was completed or accepted by the village, or within sixty days therefrom.
The motion to dismiss is made by Magliaro, the contractor, and the point is, that the complainant lost his lien because he did not sue to enforce it within sixty days from the time of filing of his notice of claim. That was the requirement of the fourth section of the act when the complainant did the work in 1930, but when he filed his notices of claim in July, 1931, the section stood amended requiring him to sue within sixty days from the completion of the contractor's work or its acceptance by the village. P.L. 1931 ch.
While compliance with the fourth section is a condition of liability to the lien afforded by the act (Somers Brick Co. v.Souder,
The motion is denied.