Herman & Grace v. Bd. of Chosen Freeholders of Essex County

• Decision Date: 21 September 1906
• Citation: 71 N.J.E. 641,64 A. 742
• Parties: HERMAN & GRACE v. BOARD OF CHOSEN FREEHOLDERS OF ESSEX COUNTY et al.
• Court: New Jersey Court of Chancery

64 A. 742

71 N.J.E. 641

HERMAN & GRACE

v. BOARD OF CHOSEN FREEHOLDERS OF ESSEX COUNTY et al.

Court of Chancery of New Jersey.

Sept. 21, 1906.

Bill by Herman & Grace against the board of chosen freeholders of Essex county and others. On demurrer to the bill. Overruled.

Guild & Martin, Willard P. Voorhees, and Chauncey G. Parker, for demurrants. John R. Hardin, for complainant

EMERY, V. C. The Essex county building commission, appointed under the provisions of an act entitled "An act to facilitate the acquirement of lands and the erection of building for county purposes," approved March 22, 1900 (P. L. p. 190), erected a county courthouse by written contract with the V. J. Hedden & Sons Company, dated October 16, 1902, and supplementary contracts, dated May 8, 1900, and November 30, 1903, copies of which contracts are annexed to the bill. The Hedden Company contracts cover the entire construction, and this company on December 20, 1902, by written contract of that date, subcontracted with the firm of John F. Sayward & Co. for the heating and plumbing work. On March 10, 1903, Sayward & Co. subcontracted with complainant for a portion of their work, and complainant under this contract, up to September 14, 1905, furnished work and materials for the construction of the courthouse, for which a balance of $6,928 was then and is still due. On November 22, 1905, Sayward & Co. suspended work under their contract with the Hedden Company, by reason of insolvency, and have since been declared bankrupts. The Hedden Company has not yet completed its contract, and (as the bill alleges) large sums of money are still due to it under the contract The bill is filed to enforce a lien on the money due or to grow due under this contract, and claimed under the act of March 30, 1892 (P. L. p. 369; 2 Gen. St. p. 2078), relating to liens on funds in the control of municipalities. The board of chosen freeholders of the county of Essex, the Essex county building commission, and the three members thereof as individuals, are made defendants to the suit, as well as the Hedden Company, Sayward & Co., and several defendants claiming title under Sayward & Co. by assignment and otherwise, and also other lien claimants who have filed claims. The demurrers to the bill filed by the Hedden Company and the Metropolitan Bank, assignees of Sayward & Co., raise specifically the following points: First; that the Essex county building commission, with whom the contracts set out in the bill were made, is not a "municipality," within the meaning of the act of March 30, 1892; second, that the contracts were not contracts for a public improvement under that act; third, improper joinder as parties defendant of the board of chosen freeholders, the building commission, and the indivdual members thereof. Under a general allegation of want of equity taken on all the demurrers, it was objected at the hearing that the lien given by the act of 1892 was given only to the original contractor, and did not extend to a subcontractor. This point was fully argued at the hearing and by the briefs, and will be disposed of.

The first and second objections cover the same point, and the material one, viz., whether, as to either the original or subcontractor, the contract in this case was a contract made with a "municipality" within the meaning of the act of 1892. It is contended by the demurrants that neither the building commission, with whom the formal contract was made, nor the board of chosen freeholders, nor the county, is such "municipality." The solution of this question depends upon the construction of this act of 1892 in connection with the act of March 22, 1900, and the supplement thereto of February 26, 1903 (P. L. p. 19). The act of 1892 is entitled "An act to secure the payment of laborers, mechanics, merchants, traders and persons employed upon or furnishing materials toward the performance of any work in public improvements, in cities, towns, townships and other municipalities in this state," and by section 1 it is provided: "That any person or persons who shall hereafter as laborer, mechanic, merchant or trader, in pursuance of, or in conformity with the terms of any contract for any public improvement made between any person or persons and any city, town, township or other municipality in this state authorized by law to make contracts for the making of any public improvement, perform any labor or furnish any material toward the performance or completion of any such contract made with said city, town, township or other municipality, on complying with the second section of this act, shall have a lien for the value of such labor or materials or either, upon the moneys in the control of the said city, town, township or other municipality, due or to grow due under said contract with said city, town, township or other municipality, to the full value of such claim or demand, and these liens may he filed and become an absolute lien to the full and par value of all such work and materials, to the extent of the amount due or to grow due under said contract, in favor of every person or persons who shall be employed or furnish materials to the person or persons with whom the said contract with said city, town, township or other municipality is made, or the subcontractor of said person or persons, their assigns or legal representatives; provided, that no city, town, township or other municipality shall be required to pay a greater amount than the contract price or value of the work and materials furnished, when no specific contract is made in the performance of said work by the contractor." Under the title of this act, a public improvement in a county, such as a county courthouse, would clearly come within the words "in other municipalities in this state," and under the first section a contract for the erection of a county courthouse, if made with any county in this state, would be included within the description "other municipality." The erection of county buildings, such as courthouses, jails, and other public buildings, are authorized, if not absolutely required by law, in every county, and a construction of this act, relating mainly to public buildings and the payment for them, which would exclude counties, while necessarily including every other territorial division, and excluding them for the reason that a county is not or may not be, for some other purposes, technically or strictly called a "municipality," seems to me unreasonable, and should not be adopted, especially as such exclusion might invalidate the act, by making it special and unconstitutional.

The real question on this branch of the case, as it seems to me, is whether the contract for this improvement, although in form a contract with the commission, was in legal effect a contract with the county. If so, it was a contract with a municipality, under the act of 1892. The answer to this question depends upon the construction of the act of 1900, and the relations of the commission and the county under that act This act is entitled "An act to facilitate the acquirement of lands and the erection of buildings for county purposes." Previous to its passage, the board of chosen freeholders in any county had the power to acquire such lands and erect such buildings through the ordinary machinery of the organization of these bodies (which in some counties were very large), and to provide for the expense by taxation or issuing bonds to limited amounts. Chosen Freeholders, Gen. St p. 410, par. 4; Gen. St p. 430, par. 126 et seq. The...