Gluck v. Ruiz-Urrutia

• Decision Date: 18 May 1925
• Citation: 129 A. 130
• Parties: GLUCK v. RUIZ-URRUTIA et al.
• Court: New Jersey Supreme Court

129 A. 130

GLUCK

v. RUIZ-URRUTIA et al.

Court of Errors and Appeals of New Jersey.

May 18, 1925.

Appeal from Circuit Court, Essex County.

Suit on mechanics' lien claim by Maurice B. Gluck against Sergio Ruiz-Urrutia and others, partners doing business under the firm name of Ruiz-Urrutia Company Builders, and others. From an order dismissing complaint, plaintiff appeals. Affirmed.

This was a suit on a mechanics' lien claim in the Essex circuit court. Motion was made before Dungan, J., to discharge the mechanics' lien and dismiss the complaint upon the ground that the plaintiff lienor had allowed more than a year to elapse without diligently prosecuting his lien to judgment. After hearing, Judge Dungan ordered the mechanics' lien discharged against the defendant Rynda Development Company, with costs. The following is a copy of his decision:

"This suit was commenced on the 15th day of March, 1923, when the summons was served upon the defendant Rynda Development Company; no other defendant being served with summons. The answer of Rynda Development Company was filed April 4, 1923. Since that time nothing further has been done in the action. It does not appear that any effort has been made to serve any of the other defendants, and, although three terms of court have since passed, no notice of trial has been given for any of those terms, and no good and sufficient reason is given for failure to give such notice.

"Judge White, speaking for the court of errors and appeals in the case of Buchanon & Smock Lumber Co. v. Dougherty, 88 N. J. Law, page 356, 96 A. 663, says: 'The clause in the Mechanics' Lien Act fixing the one-year period contemplates the reduction of the lien to judgment within that time, if diligent prosecution will accomplish that result. Until prosecuted to judgment, the lien is ex parte and arbitrary, and, in view of this extraordinary feature, and of the disadvantage under which the owner naturally labors in defending against a stale, unjust claim, founded upon a contract to the terms of which he is usually an entire stranger, the one-year limitation prescribed by the act should be strictly enforced, unless the claimant is able to set up a most excellent demonstration that it was, not only not because of any fault of his, but in spite of the exercise of at least ordinary diligence on his part, that he failed in that time to reduce his ex parte lien to the litigated lien embodied in a judgment. The burden is on the claimant to excuse...