Pfeifer v. Reiman
| Decision Date | 12 July 1932 |
| Citation | 161 A. 825 |
| Parties | PFEIFER et al. v. REIMAN et al. |
| Court | New Jersey Court of Chancery |
Interpleader by Edwin F. Pfeifer and another against Robert A. Reiman and others. Decree in accordance with opinion advised.
Osborne, Cornish & Scheck, of Newark, for complainants.
Louis B. Zavin, of Hillside, for defendant Adolph K. Artke.
Albert C. Kraft, of Irvington, for defendant Frederick Schill & Co., Inc.
Wm. J. Jaeger, of Newark, for defendants Theodore August and George Hensen.
Levy, Fenster & McCloskey and Nicholas Vitello, all of Newark, for defendant Birkenmeier & Kuhn Co., Inc.
Michael G. Alenick, of Newark, for defendants W. A. Thornley & Co., Inc., and Russell C. Gavett.
Bennett & Hanschka, of Montclair, for defendant Grover C. Porch.
Benjamin Cohn, of Newark, for defendant Thomas Roofing Co.
Isador V. Davis, of Newark, pro se.
Harry C. Brown, of Maplewood, for defendant Watchung Garden Nurseries, Inc.
Stickel, Waldeman & Duveneck, of Newark, for defendant Bing & Fink.
Max Krueger, of Newark, for defendant Andrew Isenberg.
David H. Yonteff, of Newark, for defendant F. Storsberg Co.
BERRY, Vice Chancellor.
This is an interpleader suit. The complainants allege that on September 12, 1930, a written contract was entered into by one Adolph Kulzer with Robert A Reiman, under which Reiman agreed to erect a dwelling house in Maplewood, N. J., for Kulzer, at a cost of $19,500. Before any work was done or materials furnished, the contract was filed in the office of the clerk of Essex county. At the time the contract was executed, and at all times thereafter, the complainants were the record owners of the land upon which the building was erected, and Kulzer was actually the agent of the complainants in executing the contract, although it was not so stated therein, nor was there any record or other notice of these facts to the defendants until after default by the contractor. Reiman abandoned his contract shortly before its completion, leaving unfinished work estimated to cost $610. After deducting this $610 from the money in their hands, the complainants had a balance of $4,665.51 for which they admit liability to the contractor, or to persons who furnished labor and material.
Most of the materialmen filed stop notices under section 3 of the Mechanic's Lien Act ( P. L. 1930, p. 974 [Comp. St. Supp. § 126—1]); some of the notices being directed to the owners and some to Kulzer. In addition, claims were served upon the owners by persons to whom the contractor had given orders and by one materialman who held an assignment.
The total of these claims by the stop notice claimants and assignees was in excess of the funds in the hands of the owners; hence this bill.
On April 9, 1931, the bill of complaint was adjudged as confessed against all of the defendants, and an interlocutory decree entered.
The taxed costs allowed to the complainants were $192.98, leaving a balance of $4,472.53, which is now on deposit in this court for distribution among the various claimants.
When the case came on for final hearing, the parties entered into a written stipulation of facts in which it was agreed that the building contract referred to, with specifications attached, was filed in the office of the clerk of Essex county on September 15, 1930, which was before any work was done in the erection of the building; that the contract was between Adolph Kulzer and Robert A. Reiman; that Kulzer was referred to throughout the contract as the owner; that there is nothing in the contract to show that he was acting as the agent for the Pfeifers; and that the Pfeifers were the owners of record on the date of the execution of the contract, which was September 12, 1930.
The facts concerning the stop notices and assignees as shown in the stipulation are as follows:
STOP NOTICE CLAIMANTS
Name
Date of Filing
Directed To
Amount
Passaic-Bergen Lumber Co.
January 17, 1931
Adolph Kulzer
$ 991.81
Watchung Garden Nurseries, Inc.
January 21, 1931
Adolph Kulzer
256.00
Andrew Isenberg
January 24, 1931
Adolph Kulzer
1,175.00
Blrkenmeier & Kuhn Co.
February 5, 1931
Adolph Kulzer
283.50
Grover C. Porch
February 6, 1931
Adolph Kulzer
1,700.00
Louis Wesson
February 7, 1931
Adolph Kulzer
282.00
Birkenmeier & Kuhn
February 7, 1931
Edwin F. Pfeifer and Helen P. Pfelfer.
This is a duplicate
283.50
W. A. Thornley Co.
February 9, 1931
Edwin F. Pfeifer and Helen P. Pfelfer
1,389.11
F. Storsberg
February 10, 1931
Adolph Kulzer
500.00
Adolph K. Artke
February 10, 1931
Edwin F. Pfeifer and Helen P. Pfeifer
230. 00
Thomas Roofing Co.
February 10, 1931
Adolph Kulzer formerly owner—Edwin F. Pfeifer present owner
540.00
Geo. P. Heuser, trading as Irvington Hardware Co.
Edwin F. Pfeifer, Helen P. Pfelfer, Adolph Kulzer and Robert Reiman
39.75
Frederick Schill & Co.
February 19, 1931
Adolph Kulzer
1,152.25
Bing & Fink
Edwin F. Pfeifer and Helen P. Pfeifer or Adolph Kulzer
Theodore August
Edwin F. Pfeifer and Helen P. Pfeifer, Adolph Kulzer and Robert Reiman
Frederick Schill & Co.
Edwin F. Pfeifer and Helen P. Pfeifer. This is a duplicate
ASSIGNMENTS AND ORDERS
Name
Date
Amount
Grover C. Porch (assignee)
January 24, 1931
$1,700.00
Andrew Isenberg
January 27, 1931
1,175.00
Adolph K. Artke
January 27, 1931
630.00
Theodore August
January 27, 1931
212.00
Reese Metal Weatherstrip Co. (duplicate of Bing & Fink)
February 10, 1931
185.00
Russell C. Govett
January 30, 1931
113.45
F. Storsberg Co.
February 2, 1931
(This last order is not mentioned in the stipulation, but appears as an exhibit.)
The exhibits also show that there was one other order given, but not mentioned in the stipulation, to Abraham Schottenfeld for $122, dated January 20, 1931. There was no statement of claim filed by this defendant, and it may be assumed that it was either paid or abandoned.
The stipulation and the exhibits disclose that the defendant W. A. Thornley Company, Inc., obtained a judgment against the owners specially and against Reiman generally in a mechanic's lien suit. The claim was filed on or about May 25, 1931, and the suit started on the same day. Judgment was entered on September 30, 1931, in the sum of $1,520.90.
It is apparent, therefore, that there are four groups of claimants to this fund, viz.:
(1) The mechanic's lien creditor, whose judgment is for $1,520.90.
(2) The holders of the assignment and orders, whose claims total $4,015.25.
(3) Stop notice claimants, who directed their notices to the Pfeifers as owners.
(4) Stop notice claimants who directed their notices to Kulzer as owner.
The mechanic's lien claimant, the assignee and the holders of the orders, excepting Govett, filed stop notices. The total of all claims is $9,082.46.
W. A. Thornley Company, Inc., and the holders of the assignment and the orders contend that the only remedy in this case was by lien claim, and that the filing of stop notices was ineffective, for the reason that the building contract was not signed by the owner of record as required by section 2 of the Mechanic's Lien Act as amended in 1930 (Comp. St. Supp. § 126—2).
Prior to the amendment, the wording of section 2 of the statute was as follows: "Whenever any building shall be erected in whole or in part by contract in writing, such building and the land whereon it stands shall be liable to the contractor alone for work done or materials furnished in pursuance of such contract," etc. 3 Comp. St. 1910, p. 3293.
It was held under this statute that, if the contract was signed by an authorized agent of the owners, it was sufficient to deny to every one except the contractor the privileges of filing mechanic's liens. Willetts & Co. v. Earl, 53 N. J. Law, 270, 21 A. 327.
The amendment adopted in 1930 (Comp. St. Supp. § 126—2) required that the contract shall be signed by the owner; the language of Hie amended section being as follows: "Whenever any building, or an addition to any building, shall be erected, constructed, completed, altered or repaired in whole or in part by contract in writing, signed by the record owner of the estate or interest in the land which is to be charged with the lien hereunder, such building, and the land whereon it stands, to the extent of the estate or interest so charged, shall be liable to the contractor alone for the work done or materials furnished in pursuance of such contract."
The amendment went into effect on September 1, 1930, and the contract in this case was made on September 12, 1930. The record owners at the time of the execution of the contract were Edwin F. Pfeifer and Helen P. Pfeifer. The contract was signed by one Adolph Kulzer. The filing of the contract did not preclude the right of mechanic's liens, and did not make available the remedy by stop notice. Weaver v. Atlantic Roofing Company, 57 N. J. Eq. 547, 40 A. 858; English v. Warren, 65 N. J. Eq. 30, 54 A. 860.
In the Weaver Case the building contract was filed without specifications. A number of materialmen served stop notices upon the assumption that the filing of the contract effectually prevented the filing of Hens by any one but the contractor. Some materialmen served upon the owner orders for payment of money given to them by the contractor.
The owner filed a bill of interpleader. The defendants filed answers substantially admitting the facts set forth in the complainant's bill, but disputing as between themselves the priority of their several claims upon the fund. A decree was made to the effect that the complainant was entitled to the relief prayed for, and that the defendants interplead and adjust their claims upon the fund as between them selves. An agreed statement of facts was entered into by all the defendants.
Vice Chancellor Grey held that the filing of the contract without the specifications did not relieve the land from liability to lien, and that consequently workmen and materialmen had no right to...
To continue reading
Request your trial
-
Chesebro-Whitman Co. v. Edenboro Apartments, Inc., CHESEBRO-WHITMAN
...the remedies is accepted implicitly. Weaver v. Atlantic Roofing Co., supra (57 N.J.Eq., at p. 550, 40 A. 858); Pfeifer v. Reiman, 10 N.J.Misc. 898, 904--905, 161 A. 825 (Ch. 1932); Suburban Lumber Co. v. Gerber, 17 N.J.Super. 33, 37, 85 A.2d 275 (App.Div.1951). See also Evans v. Lower, 67 N......
-
Suburban Lumber Co. v. Gerber
...i.e., whether to file a mechanic's lien or to file a stop notice. Further, the choice is made at his peril. Pfeifer v. Reiman, 161 A. 825, 10 N.J.Misc. 898 (Ch.1932); English v. Warren, 65 N.J.Eq. 30, 54 A. 860 (Ch.1903); Weaver v. Atlantic Roofing Co., 57 N.J.Eq. 547, 40 A. 858 This contra......
- Gialonella v. H. H. Seff Advertising Co. of N.J., Inc.
-
Tipula v. Garfield Mill, Inc.
...discharge thereof the sum he owes his principal. 50 C. J. 241, 243; Illingworth v. Rowe, 52 N. J. Eq. 360, 28 A. 456; Pfeifer v. Reiman, 161 A. 825, 10 N. J. Misc. 898. Complainant may have 10 days in which to amend. He should join Clark as a defendant and allege that he is insolvent, state......