Stein v. Pa. Dock & Warehouse Co.

• Decision Date: 13 April 1932
• Parties: STEIN v. PENNSYLVANIA DOCK & WAREHOUSE CO. et al., and five other cases.
• Court: New Jersey Circuit Court

159 A. 683

STEIN

v.

PENNSYLVANIA DOCK & WAREHOUSE CO. et al., and five other cases.

Circuit Court of New Jersey, Hudson County.

April 13, 1932.

Actions by Alfred A. Stein, receiver of the Terminal Warehouses, Inc., formerly the Terminal Development Company, against the Pennsylvania Dock & Warehouse Company and others, by the Hudson Builders' Material Corporation, Inc., and the DesLauries Column Mould Company, Inc., respectively, against the Cotelli Construction Company and others, and by the Cotelli Construction Company, Hoffman-Elias, Inc., of New Jersey, and the W. W. Farrier Company, respectively, against the Terminal Warehouses, Inc., and others. On motions of defendants, other than the Pennsylvania Dock & Warehouse Company, to strike out the complaints and vacate plaintiffs' liens.

Motions granted.

Mark A. Sullivan, of Jersey City, for Alfred A. Stein.

Edwards, Smith & Dawson, of Jersey City, for claimant-plaintiff Hudson Builders' Material Corporation, Inc.

Greenberg, Brenner & Weitz, of Jersey City (Saul Nemser, of Jersey City, of counsel), for claimant-plaintiff DesLauries Column Mould Co., Inc.

Joseph Moritz, of Jersey City (Saul Nemser, of Jersey City, of counsel), for claimant-plaintiffs Cotelli Const. Co. and Hoffman-Elias, Inc., of New Jersey.

Charles E. Hendrickson, of Jersey City, for claimant-plaintiff W. W. Farrier Co.

McDermott, Enright & Carpenter, of Jersey City, for defendant Pennsylvania Co., for Insurances on Lives and Granting Annuities.

Wall, Haight, Carey & Hartpence, of Jersey City, for defendants Associates of the Jersey Company, United New Jersey R. & Canal Co., Pennsylvania it. Co., Real Estate Land Title & Trust Co. of Philadelphia, and Pennsylvania R. Co.

BROWN, J.

This matter is before the court on motions of the defendant owners, other than the Pennsylvania Dock & Warehouse Company, and the defendant mortgagees, to strike out the complaints and to discharge and vacate the liens filed by the plaintiffs on the grounds that "the actions were improvidently and illegally filed and instituted contrary to law." The moving parties also crave oyer of the contract mentioned in the complaint, the lease referred to therein, and the alleged consents of the owners in writing relied upon by the claimants for the erection of the buildings.

Subsequent to the return day of the motions, the plaintiffs moved to amend their complaint by alleging an oral contract entered into wherein the defendants consented to the construction of the buildings and waived the conditions of the lease and consents in writing relied upon by the plaintiffs in the original complaint in so far as they provided that no liens were to be impressed upon the lands and buildings.

Following our modern practice, copies of the written instruments were furnished in answer to the demand for the reading of those instruments in response to the oyer craved. The motion to amend the complaint was not granted at the time it was made, but the plaintiffs were allowed the opportunity of presenting their form of amendment with affidavits to support the allegations therein contained for the purpose of first determining whether the amendments should be allowed. The plaintiff W. W. Farrier & Co. filed affidavits to support the motion to amend, and those affidavits were relied upon by some of the defendants to support their proposed amendments. The court does not find in the affidavits thus furnished any proof to support the allegations in the proposed amendments, but, on the contrary, affidavits submitted by the defendants clearly prove that the proposed amendments are sham, and therefore the motion to amend the complaints will be denied.

There remains for determination the original motions made by the defendants to strike out the original complaints. In order to determine those motions it is necessary to make reference to the pleadings in the case and the circumstances surrounding the litigation.

The suits arise out of the construction of warehouses on the property located at what is known as the Pennsylvania Terminal in the city of Jersey City. The contract was made in September, 1929, in writing, for the construction of those buildings by the Terminal Warehouses, Inc., formerly known as the Terminal Development Company, with the defendant Pennsylvania Dock & Warehouse Company, a corporation of New Jersey, whereby the contracting company agreed to furnish the labor and materials necessary to erect the buildings for the last mentioned company. The complaint and the schedules annexed thereto are to the effect that the contract price for the work and materials was $7,675,270; that extras consisting of alterations and additions resulted in an additional charge of $1,324,732.09, making a total claim of $9,000,002.09. There appears to have been payments made and credits allowed totaling $7,813,592.80, leaving an amount claimed to be due of $1, 186,409.29.

The defendants making the motions to strike contend the motions should be allowed for the reasons: (1) That as to the interests of the Pennsylvania Railroad Company, United New Jersey Railroad & Canal Company, and the Associates of the Jersey Company, the buildings were not erected with the consent in writing of such owners as required by the Mechanics' Lien Law; (2) that the motions should prevail as to all the defendants because the building contract as well as the lease from the Pennsylvania Railroad Company provided that no liens should be filed against the property upon which the buildings were erected.

The fee in the land involved is vested in a corporation known as the Associates of the Jersey Company, which company leased the lands to the United New Jersey Railroad & Canal Company, and this lease was thereafter assigned to the Pennsylvania Railroad Company. The Pennsylvania Railroad Company in August, 1929, leased the land described in the complaint to the Pennsylvania Dock & Warehouse Company and the Associates of the Jersey Company and the United New Jersey Railroad & Canal Company consented in writing to this lease, and the buildings were erected by the warehouse company as lessee of the Pennsylvania Railroad Company under contracts with the Terminal Warehouses, Inc.

The interest and estate in the land of the Pennsylvania Railroad Company, the Associates of the Jersey Company, and the United New Jersey Railroad & Canal Company cannot be subjected to a lien in law unless a consent in writing, as provided in the Mechanics' Lien Law, is proved. The plaintiffs or claimants rely for those consents upon the provisions of the lease to the warehouse company. This lease as well as all other leases...