On appeal of defendant mortgagee from Bergen County Circuit Court.
For the appellant, John M. Bell.
For the respondent, Solomon Goldman and Ryland E. Lippincott.
The opinion of the court was delivered by
WELLS, J. This is a mechanics' lien suit and out of it arises a dispute between a holder of advance-money mortgages and a materialman as to the priority of their respective claims.
The plaintiff supplied between September 28th, 1928, and January 18th, 1929, certain building materials to the Teaneck Building Corporation used by it in the construction of three one-family dwelling houses on a tract of land owned by it in the township of Teaneck, Bergen county, aggregating $6,782.75. Subsequently the Teaneck Building Corporation paid $2,500 on account, leaving a balance of $4,282.75, for which plaintiff brings this suit.
On February 25th, 1929, the Teaneck Building Corporation was declared insolvent and Joseph Greenberg and N.J.
Cafarelli were appointed receivers by the Court of Chancery, which gave plaintiff leave to bring this suit.
The appellant, The East Rutherford Savings, Loan and Building Association, agreed to loan the Teaneck Building Corporation the sum of $5,000 on each of said three lots of land, taking three bonds and advance-money mortgages, dated December 7th, 1928, and duly recorded in the Bergen county clerk's office.
The sum of $4,900 was actually advanced by the appellant to the Teaneck Building Corporation on each of these three mortgages.
The lien claim of plaintiff was filed March 11th, 1929, and in the suit brought on said lien claim by the plaintiff-respondent against the receivers of the Teaneck Building Corporation, the East Rutherford Savings, Loan and Building Association (the appellant herein) was made a party defendant, as the holder of said mortgages.
The Circuit Court judge, before whom the case came up for trial, referred it to a referee to take and state the account between the parties and to report the same back to the Circuit Court. The referee found first, that the sum of $4,900 advanced by appellant on each of the three mortgages of $5,000, was entitled to priority in payment over the lien claim of the plaintiff; second, that plaintiff was entitled to a special lien against the premises described in the lien claim, subject to the lien of the appellant's mortgages.
No exceptions were filed by the defendant-appellant to any part of ...