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ments. There are some other letters, but these are the only ones that seem to me to be important.
I do not see how this correspondence, even if it can be construed into an agreement to pay the debt, or an agreement to stand for the default of the American skylight company, can be of any avail to the complainant in this suit. The present litigation is wholly statutory; it provides only for the foreclosure of liens and does not in any way afford to any of the parties any other relief, much less such relief as can and ought to be afforded by the courts of common law; nor do I think that any statements made by Mr. Kılgus in this correspondence can be held to operate as an estoppel against him under the peculiar and very limited form of proceeding to which the complainant is by our statute entitled. I must therefore hold that if the complainant has any remedy against Mr. Kilgus arising out of this correspondence that remedy must be sought in the common law jurisdiction.
We have left therefore a statement of facts which is extremely simple. It raised the question whether the materialman, who furnishes materials to a sub-contractor who had not completed his contract, is entitled to a lien on the money due or to become due from the municipality to the original contractor. It appears that on January 20, 1909, Kilgus made a contract with the Newark Cornice and Skylight Works to finish the work to be done under the contract made by the American Skylight and Iron Works. He had already paid to the complainant, on account of the American skylight works contract, the sum of $500; deducting this from the contract price, $2,700, it would leave $2,200 with which to finish the work. He was obliged to pay $2,300, thereby losing, from his own funds, $100, and demonstrating that on that day, January 2d, there was nothing due from the contractor to the sub-contractor, nor in fact under the state of facts could anything thereafter have become due thereunder. This particular point was raised and decided under the New York statute, which is substantially the same as ours, in Brainard v. Kings County, 84 Hun 290; 32 N. Y. Supp. 311; in that case there was a contract between the county and one Dean for the erection of a bridge in Brooklyn. Cregin was a sub-contractor
for the work or some portion of it. He purchased materials from the plaintiff, which were used by him to finish the contract on his, Cregin’s, account, and this Dean did. Brainard filed a lien under the Municipalities Lien law, and in the court below recovered judgment against the county. The county appealed, and the appellate court set the judgment aside on the ground that Cregin's creditors could not have a lien on the fund because there was nothing due from Dean to Cregin. Vice-Chancellor Grey, in Garrison v. Borio, 61 N.J. Eq. (16 Dick.) 236, adopted the rule laid down in that case. He declared in substance that it was necessary for a claimant under these circumstances in order to recover to prove not only that there was a sum due from the contractor to the sub-contractor, but also that there was a sum due from the municipality to the contractor. It was admitted in the case at bar that the municipality was indebted to Kilgus in an amount sufficient to satisfy the complainant's claim; but inasmuch as it likewise appeared that the contractor owed the subcontractor nothing, there can be no decree in favor of the lien.
It is quite plain that unless there is some fund to which the lien can attach there necessarily can be no lien. How can a creditor of the sub-contractor work out a lien on the contractor's money through the medium of a sub-contractor who confessedly cannot recover against the contractor? The sub-contractor is in no position to sue the contractor, and it has been held in many cases that the criterion of the ability to claim a lien is the capacity to bring a suit with respect to the indebtedness. The subcontractor cannot recover against the contractor because he did not complete his contract; he had not earned his contract moneys, and in a suit between him and the contractor the judgment must be in favor of the contractor.
I, therefore, am constrained to hold that the complainant has no lien, and that his bill must be dismissed, with costs.
Roarke v. Roarke.
[Decided February 25th, 1910.]
1. An adjudication by a police justice under P. L. 1898 p. 9.12 $ 17, on complaint of the overseer of the poor that the defendant is a deserter of bis family, and requiring him to pay a certain sum weekly for the support of his wife and child, precludes an application by the wife to this court for maintenance under the Divorce act (P. L. 1907 p. 474 $ 26), while the adjudication of the justice is still in force and being obeyed, when the proceedings before the police justice were initiated by the wife, although prosecuted by and in the name of the overseer.
2. When a wife causes complaint to be made by the overseer of the poor against her husband under the Disorderly act, to the end that he be adjudged to support her and also files a bill in chancery for maintenance under the Divorce act, and the complaint before the police jus, tice is prosecuted to an adjudication prior to a hearing in this court on an application for alimony and counsel fees, she will be held to have waived, for the time being. her remedy in this court in favor of the remedy in the police court; the doctrine of election applies.
3. The complainant being a real, though not a nominal, party to the proceedings before the police justice, is bound by those proceedings; and even if the overseer of the poor were the only party, the complainant would be privy to the proceedings and therefore bound by the judgment.
4. When a wife causes to be prosecuted to a finality a complaint against her husband for support before a police justice under the disorderly act before prosecuting to a hearing in this court an application for alimony under the Divorce act, the matter in issue will be held to be res adjudicata.
5. The adjudication of a police justice against a deserter of his family that he is a disorderly person and requiring him to pay a certain sum weekly for the family's support. being operative for one year from its date, after which time the complainant would be at liberty either to cause the defendant to be prosecuted de novo before the police justice or resort to this court for the remedy given by the Divorce act, a bill for alimony already filed will be retained, with leave to the complainant proceed thereon after the police justice's adjudication has become inoperative.
On application for alimony pendente lite.
WALKER, V. C.
The bill of complaint is one by a wife for maintenance for herself and the child of the parties, under the statute, P. L. 1907 p. 474 S 26. The present application is for alimony and counsel fee pendente lite. The defence to the application is that the complainant caused the arrest of the defendant as a deserter of his family, under the Disorderly act (P. L. 1898 p. 94,2 § 17), and that the police justice of Rahway, before whom he was arraigned, adjudged him to be a disorderly person within the meaning of the statute, and made an order that he pay $5 a week to the overseer of the poor for the support of his family (wife and child). The defendant, upon his apprehension, entered into the usual bond, with security, conditioned to obey such order as might be made, and has, in fact, complied with its terms. At the time the application herein was made, the order of the justice was in force and still remains in force. The complainant in the proceedings against Roarke before the police justice was made before the filing of the bill, although the adjudication by the justice was not made until several days after the bill was filed. The adjudication, however, had been made before this application was preferred.
The question presented on this record is, does the adjudication of the police justice of Rahway that the defendant is a deserter of his family and the requiring him to pay $5 a week for the support of his wife and child, preclude an application to this court for maintenance under the statute while the adjudication of the police justice is still in force and being obeyed? This question, to my mind, must be answered in the affirmative.
The proceeding before the police justice, although on the complaint of the overseer of the poor of the city of Rahway, was initiated by the defendant's wife, who is the complainant here. On the day the overseer's complaint was made before the police justice, Mrs. Roarke, herself, made a complaint before the same jus
tice of purport similar to that made by the overseer, and her complaint was, in fact, the basis of the overseer's complaint. The record of the proceedings before the police justice so disclosed. It would seem that the wife, for whose benefit the complaint was made, is a real party in interest in the cause and can be concluded by the judgment of the police justice. Whether so or not, the complainant, in this cause, must be considered to be the real party in interest in the prosecution before the police justice of Rahway, for, while section 17 of the Disorderly act requires the overseer of the poor to make complaint only in case he believes that the defendant deserts or willfully refuses or neglects to provide for and maintain his family, and that by reason thereof they may become chargeable to the city, nevertheless, in this case, as I said before, the wife instigated the making of the overseer's complaint, and, on the argument of this matter, she was treated by counsel on both sides as the real party in interest in the proceedings under the Disorderly act, counsel for the complainant so arguing both orally and in his written brief.
When a public officer sues in his own name by virtue of statutory authority in respect of some right which enures to the benefit of an individual, the individual, it seems, is a party substantially and beneficially interested. 30 Cyc. 94. And although the proceedings by the police justice are prosecuted in behalf of the public to save it from becoming charged with the support of the deserted family, the family, nevertheless, is also interested.
Therefore, as this matter was presented by both sides upon the theory that the wife was the real party in interest in the complaint before the police justice of Rahway, it will be so held in this case for the purpose of the decision of the question so presented, and hereafter the matter in the police court will be referred to as the wife's proceeding, ignoring the more or less nominal character of the overseer of the poor upon the record.
To give the court jurisdiction to decree such support as the wife seeks in this case, there must be not only an abandonment of the wife by the husband, but also neglect or refusal to support her. Both conditions must exist to give jurisdiction. Margarum v. Jargarum, 57 N. J. Eq. (12 Dick.) 219. Now, how can it