26 N.J. Eq. 489 | New York Court of Chancery | 1875
If the complainant, by his notice to Brenner and Mayer, ■acquired a right to any part of the debt represented by the judgment, I think it must be admitted he has a right to ask this court to give him the benefit of that right. He is not a
The material question raised, then, by the demurrer, is, did the complainant, by his notice, acquire any right to the debt ■due from Brenrcr and Mayer to Luddeke? Its solution must bo found in the third section of the lien law. Revision 448.
Read in the light of the interpretations given to it by the Supreme Court in Reeve v. Elmendorf, 9 Vroom (not yet reported), and by the Court of Errors and Appeals, in Craig v. Smith, 8 Vroom 550, that section must be understood to declare, that on the refusal of the contractor to pay a -workman or materialman for labor performed on the building or materials furnished for it, he may give the owner written notice of such refusal and of the amount due to him; and if the owner is then liable to the contractor, under the contract, in the amount of the sum demanded, and has no reasonable cause to dispute the claim made, ho shall pay, and such payment shall operate as a payment to the contractor; and if the owner, without reasonable cause to dispute the claim, refuses to pay, the workman or materialman may maintain an action against him, and recover the amount of the debt due to him from the contractor.
It is insisted by the demurrants, that the effect of the notice is limited to the creation or raising of a right of action, and does not transfer any right of the contractor,'or give the workman or materialman any right whatever to the debt due from the owner to the contractor. This view is manifestly unsound. It can only he supported on the theory that it was the legislative design to make one man pay another’s debts.
1 am clearly of opinion the notice, authorized by this section, works an assignment pro tan!a of the debt due by’ the owner to the contractor, and that where the contractor has recovered a judgment against the owner for the debt so assigned, and is attempting to enforce it in fraud of the rights of the workman or materialman, it is competent for this court to enjoin its collection, take possession of the fund, and determine and adjust the rights and equities of the rival claimants.
It w7as also urged, in support of the demurrer, that the recovery at law by Luddeke concluded the rights of all parties to the debt represented by the judgment, and that it must be assumed be simply recovered the amount due to him after deducting the amount covered by the notices. I take it to be clear the complainant cannot be concluded, so far, at least, as he stands in his own rights, and not as the representative of Luddeke, by an adjudication to which lie was not a party, and in which he had no right to be heard. It is equally clear, I think, that it cannot be assumed in ascertaining the sum due to Luddeke, the sum covered by the notices was deducted. The owner’s right to deductions or allowances, by the statute, is restricted to payments. Until actual payment, or something which, in law, is equivalent, no allowance can be made. Notice creates a right against both owner and contractor, but does not constitute a payment, or operate as a credit.
It was also urged that the complainant has a complete remedy at law, and should not, therefore, be permitted to maintain an action in this court. I have no doubt, under the facts stated in the bill, the complainant has a right of action for his claim against Brenner and Meyer. But that is not the limit of his right; it embraces more. He has a right to a part of the debt represented by the judgment, and to be paid out of that particular fund. The money is here; it has been paid into court, under its order, in discharge of the judgment; the parties entitled to it are here, and should not be turned
The demurrer must be overruled, with costs-. I will advise-accordingly.