Brunett v. Grandi

• Decision Date: 09 May 1918
• Docket Number: No. 43/245.,43/245.
• Citation: 104 A. 139
• Parties: BRUNETT v. GRANDI et al.
• Court: New Jersey Court of Chancery

104 A. 139

BRUNETT

v. GRANDI et al.

No. 43/245.

Court of Chancery of New Jersey.

May 9, 1918.

Interpleader suit by Nichola Brunetti against Antonio Grandi and Francesco Criscitelli and others. Decree for one Themistocles Mancusi-Ungario, a defendant.

Gaetano M. Belfatto, of Newark, for complainant. Osborne & Astley, of Newark, for Rome Stone Cutting Co. Stallman, Van Liew & Peck, of Newark, for Bockovan Bros. Co. Henry H. Dawson, of Newark, for Tomkins Bros. Charles C. Giffoniello, of Newark, for Joseph Occhicone, Essex Mosaic Tile Co., and West Side Iron & Steel Works. Carl F. Hinrichsen, of Newark, for Cook & Genung. Kessler & Kessler, of Newark, for East Side Molding & Lumber Co., Herman Mass, Rising & Thorne, and Max Abramson. Themistocles Mancusi-Ungario, of Newark, pro se.

LANE, V. C. This is an interpleader suit brought by the owner of property against whom there had been obtained a judgment by a contractor for the balance due him for work performed under the terms of a filed contract for the construction of a building. On January 13, 1915, suit was brought at law by the builder against the owner. Judgment was obtained for $3,516.62. The case was taken to the Supreme Court and the Court of Errors and Appeals, and the judgment was finally affirmed on the 15th day of March, 1916. Prior to the institution of suit notices had been served under the third section of the Mechanic's Lien Act (3 Comp. St. 1910, p. 3294) by subcontractor, and materialmen. The amounts admitted to be due to the noticing claimants exceed the amount of the judgment. The claimant, Themistocles Mancusi-Ungario, was the attorney for the contractor in the suit at law. Immediately after the entry of judgment he obtained an assignment thereof to secure his fees and disbursements, which was duly recorded. He now claims priority over the noticing claimants for his costs and disbursements and a reasonable fee for his services rendered. There is no dispute as to the validity or priority of the claims of the respective noticing claimants, nor is there any dispute as to the amount that should be allowed the attorney, if he is entitled to priority, and the only question in the case is whether or not this priority exists.

Prior to the adoption of the statute giving attorneys' liens (Laws of 1914, p. 410) the law seems to have been that a lien of attorneys for compensation arose only after judgment recovered, or after the proceeds of a compromise or settlement had come to the actual possession of the attorney. Magie, Chancellor, in Weller v. Jersey City, Hoboken & Paterson St. R. Co., 66 N. J. Eq. 11, 57 Atl. 730, citing Terney v. Wilson, 45 N. J. Law (16 Vr.) 282; Philips v. Mackay, 54 N. J. Law (25 Vr.) 319, 23 Atl. 941; Barnes v. Taylor, 30 N. J. Eq. (3 Stew.) 467; Middlesex Freeholders v. State Bank, 38 N. J. Eq. (11 Stew.) 36. After the entry of judgment or decree, the defendant after notice of a claim of lien might not pay the amount due without making himself liable for the amount due the attorney for services and disbursements. Barnes v. Taylor, 30 N. J. Eq. (3 Stew.) 467. Nor could the client substitute an attorney where there was a fund within the control of the court without satisfying the attorney's lien. Hudson Trust & Savings Inst. v. CarrCurran Paper Mills, 44 Atl. 638. The statute (P. L. 1914, p. 410) provides that:

"After the service of a summons and complaint in any action at law, * * * the attorney, solicitor or counselor-at-law who shall appear in said cause for such party instituting the action at law, or suit, * * * shall have a lien for compensation, upon his client's cause of action, * * * which shall contain [sic] and attach to a verdict, report, decision, decree, award, judgment or final order in his client's favor, and the proceeds thereof in whosoever hands they may come."

The contention of the noticing claimants is that at the time of the service of summons the contractor had no cause of action upon which an attorney's lien could attach because the notices served theretofore had operated as assignments pro tanto of the moneys due from the owner to the contractor to the extent necessary to pay the claims). It has been held that notices served under the third section do operate as assignments pro tanto. Wightman v. Brenner, 26 N. J. Eq. 489; Ktrtland v. Moore, 40 N. J. Eq. 106, 2 Atl. 269; Kreutz v. Cramer, 64 N. J. Eq. 648, 54 Atl. 535. An action at law will lie by a noticing claimant against the owner. Craig v. Smith, 37 N. J. Law, 549; Wightman v. Brenner, supra; Reeve v. Elmendorf, 38 N. J. Law, 125. In such an action it is, however, necessary for the plaintiff to prove that there is a sum due from the owner to the contractor. Such an action will not lie until the amount is due under all of the terms of the contract. Booth v. Kiefer, 60 N. J. Eq. 57, 47 Atl. 12. Where there are several notices served and there is a question of priority or validity, or where there is a dispute as to the amount due from the owner to the contractor, the general practice is to seek relief in a court of equity on bill of interpleader or in the nature of a bill of interpleader....