Mitchell v. Wrightstown Cmty. Apartments Inc.
| Decision Date | 30 June 1949 |
| Docket Number | No. A-404.,A-404. |
| Citation | 67 A.2d 203 |
| Parties | MITCHELL v. WRIGHTSTOWN COMMUNITY APARTMENTS, Inc. et al. |
| Court | New Jersey Superior Court |
OPINION TEXT STARTS HERE
Appeal from Burlington County Court.
Action by Joseph Mitchell against the Wrightstown Community Apartments, Inc., and another to establish and enforce a mechanic's lien. From a summary judgment dismissing the complaint, the plaintiff appeals.
Reversed with instructions.
Before Judges JACOBS, EASTWOOD and BIGELOW.
W. Louis Bessle, Camden, argued the cause for plaintiff-appellant.
Arthur N. Weitz, Jersey City, and Vincent L. Gallaher, Camden, argued the cause for defendants-respondents (Anthony C. Mitchell, Camden, attorney).
The opinion of the court was delivered by
BIGELOW, J.A.D.
The plaintiff appeals from a summary judgment of the Burlington County Court dismissing his complaint which was framed upon the Mechanic's Lien Law. R.S. 2:60-105 et seq., N.J.S.A. The judgment was based upon the court's determination that the plaintiff had waived his right to a mechanic's lien. The motion for summary judgment included a further reason upon which the court did not pass, namely, that the complaint is sham.
The complaint is in two counts, of which the first sets forth that the plaintiff had contracted with the defendant landowner, the Wrightstown Community Apartments, Inc., to erect certain garden-type apartments for the agreed price of $600,000, and that ‘differences in cost and extra work’ brought the amount to $758,962.
The basis of the cause of action is the alleged refusal of the owner to make payments in accordance with the contract. The apartments were being erected with money advanced by the Hudson County National Bank upon mortgage guaranteed by the Federal Housing Administration. Article 4 of the contract provides that the contractor shall apply to the owner about the first day of each month for payment for the work of the preceding month.
In the Payment Breakdown, the work is divided into 32 items, to each of which is allocated a certain sum, for instance, masonry $49,139, rough carpentry $65,518. The monthly application or requisition for payment would show, for instance, that 50 percent of the rough carpentry was completed and that the contractor was entitled to 50 percent of the amount allocated to that item, less 10 percent. A breach of contract is alleged as follows: ‘The defendant, Wrightstown Community Apartments, Inc., breached said contract on October 16, 1948, by refusing to advance any more moneys thereunder, in accordance with its provisions, whereupon plaintiff was unable to purchase materials, pay for labor, or pay his subcontractors, and was prevented thereafter from completing said work under said contract.’
The complaint further shows that the indebtedness is a lien on the land and building, and that the Hudson County National Bank is made a defendant because it holds a mortgage which would be cut off by a sale under plaintiff's lien claim.
The second count is exactly the same as the first, except that it alleges that Wrightstown Community Apartments agreed to pay plaintiff reasonable worth instead of a stipulated sum.
The complaint credits defendants with payments on account and the value of the work remaining to be...
To continue reading
Request your trial
-
Aetna Cas. and Sur. Co. v. United States
...Williams, 95 Ind.App. 506, 176 N.E. 154, rehearing denied, 95 Ind.App. 506, 178 N.E. 177 (1931); Mitchell v. Wrightstown Community Apartments, Inc., 4 N.J.Super. 321, 67 A.2d 203 (App.Div.1949); Capitol Plumbing and Heating Supply Co. v. Snyder, 104 Ill.App.2d 431, 244 N.E.2d 856 (1969), an......
-
Home Owners Const. Co. v. Borough of Glen Rock
...reversed on appeal; similar instances in our state courts are not at all rare. See, e.g., Mitchell v. Wrightstown Community Apartments, Inc., supra (4 N.J.Super. 321, 67 A.2d 203 (App.Div.1949)); Hodes v. Dunsky, 5 N.J.Super. 333, 69 A.2d 34 (App.Div.1949); Lionshead Lake, Inc. v. Township ......
-
General Elec. Co. v. E. Fred Sulzer & Co.
...against liens, he is deemed to have waived his right to the lien. Defendants also rely upon Mitchell v. Wrightstown Community Apartments, Inc., 4 N.J.Super. 321, 67 A.2d 203 (App.Div.1949), and Stein v. Pennsylvania Dock, &c., Co., 10 N.J.Misc. 568, 159 A. 683 Plaintiff contends that the ca......
-
Templeton v. Scudder
...that in such summary inquiries it must 'palpably' appear that there is no factual issue. Mitchell v. Wrightstown Community Apartments, Inc., 4 N.J.Super. 321, 326, 67 A.2d 203 (App.Div.1949); Hodes v. Dunsky, 5 N.J.Super. 333, 338, 69 A.2d 34 (App.Div.1949); Lionshead Lake, Inc., v. Tp. of ......