100 N.J. Eq. 181 | N.J. Ct. of Ch. | 1926
This is a municipal mechanics' lien suit in connection with the Grassy sound bridge. It was instituted by the railroad company to enforce a claim for freight upon materials shipped to Anglesea and Wildwood Junction.
At the final hearing of the cause, a witness was examined and cross-examined. A continuance of the hearing then being in order, it was arranged that, before any date be fixed, briefs be presented to the court upon the legal questions that have thus far arisen in the case, as a decision of such questions may make a further hearing unnecessary.
The defendants raise four legal questions to be determined, which will be considered in the order as presented —
In determining this question, the fact that the goods in question were used by the contractor in the erection of the building (bridge) in question must be conceded.
Under our statutes a mechanics' lien claim suit may be maintained for the transportation and delivery of materials, as for labor performed for the erection and construction of a building. Davis v. Mial,
It is evident, however, that Davis v. Mial, supra, is conclusive that the transportation charges are subject for lien.
The language of Judge Spear, as adopted by the chancellor in the court of errors and appeals, is illuminating: "When the manufacturer fixes his price at so much `delivered at the building,' does anyone doubt that the price includes an allowance for cartage? In the case at bar it is sought to *183 subject the building to a lien for labor performed in the erection and construction of the building because, had the transportation charges been included in the price of the goods, there could have been no doubt of the right to a lien. I am clear that such service constitutes labor performed for the erection and construction of a building."
The railroad company has therefore the right to lien for freight upon the goods in question.
This resolves itself to a question of fact, which I find in favor of the complainant.
The notice claimed an item of ten dollars ($10) as freight, which, as a matter of fact, was an item for materials furnished. This was clearly an error, and the notice and claim were made in good faith, and the lien, therefore, does not fail Camden IronWorks v. Camden,
Defendants cite: Haughwout Pomeroy v. Murphy,
22 N.J. Eq. 531 ; Haupt Co. v. Board of Education of Edgewater,87 N.J. Eq. 362 .
In the latter case, the court of errors and appeals in a percuriam opinion stated: "* * * we think it enough to say that when a lien is claimed, the suit is not begun until the subpoena is taken out." *184
In the former case, the question was the filing of lispendens, and the court said: "Before any statutory provision was made requiring notice of the pendency of the suit to be filed in order to charge a subsequent purchaser from the defendant with notice of the litigation, it became the established practice that subpoena served and bill filed were necessary before the suit was considered as commenced * * *."
Suits in chancery are commenced by the issuance and service of subpoena, or the making of a bona fide attempt to serve it, after the bill has been filed. Delaware River Q. C. Co. v.Mercer Freeholders,
Vice-Chancellor Foster, in Buchanan Smock Lumber Co. v.Brower,
Commencement (of an action) is marked by the issuance of subpoena after bill filed, provided the subpoena is instrumental, directly or indirectly, in bringing the defendant within the jurisdiction of the court. Lehigh Valley Railroad Co. v.Andrus,
It follows that a final determination must be had. If either party desires to take further testimony, or to be further heard, a short day will be given. *185