Rubino v. Tranor

• Decision Date: 31 October 1930
• Citation: 152 A. 647
• Parties: RUBINO v. TRANOR et al.
• Court: New Jersey Circuit Court

152 A. 647

RUBINO

v. TRANOR et al.

Circuit Court of New Jersey.

Oct. 31, 1930.

Action by John A. Rubino, trading as the U. S. Steel & Wire Company, against Grover C. Tranor and others. On motion to strike out the complaint.

Motion granted in accordance with opinion.

Alexander T. Schenck, of Newark, for plaintiff.

Edward C. Wyckoff, of Newark, for defendant Fidelity Union Title & Mortgage Guarantee Co.

Robert S. Snevily, of Westfield, for defendants McVoy and Tranor.

THOMPSON, J.

This is a motion to strike out the complaint on the ground of misjoinder of two separate causes of action in each of two counts., it might well have been made on the ground that as to one of the debts set forth therein the complaint does not state facts sufficient to constitute a cause of action against the defendants Tranor and McVoy or a lien on their lands. Counsel have in their briefs really argued the motion as though it had actually been made on that ground, and rest their respective contentions on their conception of the merits considered from that standpoint, as well as that of alleged misjoinder. The first count alleges a lien, under the Mechanics' Lien Law (3 Comp. St. 1910, p. 3291 et seq., § 1 et seq.), upon the real estate of the defendants Grover C. Tranor and Herbert C. McVoy, as owners, for the amount of two debts to the plaintiff, one from Pioneer Iron Works, Inc., in the amount of $607.07, and the other from Bernhard Miller and Morris Abramson, trading as Interstate Iron Works, in the sum of $266.59. The amount of each debt is alleged to be the contract price of work done or materials furnished in each case to the building constructed on the lands of Tranor and McVoy. The second count sets up the same debts; the amounts being therein alleged to be the reasonable worth of the respective work and materials furnished.

The facts are as follows: Tranor and McVoy, owners of the land, contracted with Pioneer Iron Works, Inc., for certain steel material and construction on their lands in Westfield, N. J. Pioneer Iron Works, Inc., in turn, contracted with the plaintiff for the furnishing of such material and construction. Plaintiff furnished it to the extent of $607.07. The last materials furnished or work done on the buildings by the plaintiff, under this contract, was on June 24, 1929. Pioneer Iron Works, Inc., failed, a receiver was appointed, and the plaintiff was not paid. He filed no materialman's lien within four months of June 24, 1929, for this debt. Subsequently, McVoy and Tranor, owners, contracted with Miller and Abramson, trading as Interstate Iron Works, for similar materials and work necessary to complete the construction. The latter also, in turn, contracted with the plaintiff for furnishing these materials and work to the extent of $266.59. None of the contracts were filed. The last materials furnished by plaintiff to Interstate Iron Works and used in the building in question was on October 23, 1929. Within four months thereafter, plaintiff filed his lien and brought this action against Tranor and McVoy, as owners of the land, and against Pioneer Iron Works, Inc., for the labor and materials previously furnished to it (and for which plaintiff had failed to file a lien claim within the statutory four months), and against Interstate Iron Works for the remainder of the materials. The receiver of Pioneer Iron Works, Inc., and the Fidelity Union Title & Mortgage Guaranty Company, mortgagee, are also made parties defendant.

The objection to the complaint, on the part of the defendants Tranor and McVoy, owners, and the ground of their motion to strike the complaint, is that the claims are misjoined in the same counts, in that they are not debts against the same parties, or all proper liens against the land and buildings, and that they are independent and separate causes of action against different parties, and that, as before stated, the claim against Pioneer Iron Works, Inc., does not constitute a cause of action against Tranor and McVoy, or a lien on their lands. It is claimed that this is so because neither Tranor and McVoy, nor their lands, can be liable for the plaintiff's claim for the materials furnished and work performed under his contract with Pioneer Iron Works, Inc., for the reason that plaintiff lost his right against Tranor and McVoy, or their lands, by failure to file a materialman's lien claim within the statutory period of four months, and that plaintiff therefore has a claim only against Pioneer Iron Works, Inc., and its receiver, which is a separate and distinct cause of action against a party other than the defendants Tranor and McVoy, and that such cause of action may not be joined in the same counts with the cause of action properly against them or their lands. The plaintiff contends, on the other hand, that it has a cause of action against Tranor and McVoy, or a lien on their lands, by reason of the indebtedness of Pioneer Iron Works, Inc., under the Mechanics' Lien Law, and that there is therefore no misjoinder. The basis of the plaintiff's contention is that the work and materials furnished by him to Pioneer Iron Works, Inc., under the one contract, and the materials furnished to Interstate Iron Works under the other contract, all went into the...