On mechanics' lien. On appeal of defendant Frieland, owner, from the Essex County Circuit Court.
For the appellant, William Greenfield.
For the respondent, Samuel I. Kessler.
The opinion of the court was delivered by
PARKER, J. Of the points urged for a reversal of this judgment against Frieland, who was brought in as owner by amendment, we find it necessary to consider only one, which is that the lien had been in law discharged by failure of the claimant to prosecute his claim diligently within one year from the date of issuing summons. Comp. Stat., p. 3305, § 18. To elucidate the point, a short chronological account of the proceeding is required.
The lien claim was filed on March 31st, 1926, and suit thereon was begun April 1st, 1926. In June, 1926, there was a motion to amend the claim, which was contested, and decided early in July, and on the 15th of that month judgment interlocutory was entered as against certain defaulting defendants with whose rights we are not now concerned. On July 8th there seems to have been a new summons and complaint impleading the present appellant who answered in due course on July 24th, and plaintiff replied July 29th. From this point nothing appears on the record or files until January 31st, 1929, a period of two years and six months, at which last date the plaintiff gave notice of a motion "for an order to extend the time to prosecute, and restore the above entitled cause to the list." On the hearing of the motion, the judge made an order, the text of which was as follows:
"Application having been made, upon notice, for an order extending the time within which to prosecute the above suit and restore same to the list; and, after hearing the argument of William Greenfield, attorney for the defendant, Harry Frieland, and Samuel I. Kessler, attorney for the plaintiff; and it appearing that the matter came on regularly for trial and by agreement between the attorneys it was agreed that the case be tried before this court without a jury, upon an agreed state of facts. And
"It further appearing that the attorneys cannot agree upon the facts; and plaintiff having given notice of this motion, and it appearing that there was no undue delay on the part of the plaintiff in prosecuting this action, it is thereupon on this 13th day of February, 1929,
"Ordered, that the time for prosecution of the above suit be extended, upon the condition that the plaintiff give notice of trial for the April term, 1929."
It is argued for the appellant that the making of this order was legal error. We think that it was. Admittedly, the case had not been noticed for trial at any term later than that of April, 1927, after which it ceased to appear on the calendar until after the above motion had been made and granted. But so far as the state of the case shows (and no criticism of it as incomplete has been made) the only excuse tendered by plaintiff for failing to press it to a trial is that contained in the affidavit by his counsel, the body of which is as follows:
"I was counsel for the Newark Woodworking Company, Incorporated, at the time suit was instituted. On the 23d day of May, 1927, the above matter was duly called for trial before the Honorable William A. Smith.
"In open court, after some discussion, the attorney for the plaintiff and William Greenfield, attorney for the defendant, Harry Frieland, agreed upon the facts and informed Judge Smith that the matter was entirely a question of law. It was then agreed that the case be taken out of the call and that a stipulation of ...