On appeal from the Hudson County Circuit Court.
For the appellant, Aaron A. Melniker.
For the respondent, Center Realty Company, Stein, McGlynn & Hannoch (Samuel Roessler, of counsel).
The opinion of the court was delivered by
DALY, J. The Neswit Realty Company, as builder and owner, commenced the erection and construction of a five-story brick apartment house on lands owned by it at the corner of Grant avenue and Bergen avenue, Jersey City, on or about March 1st, 1927; and Posnak & Turkish, Incorporated, the plaintiff-appellant, furnished materials for the erection and construction of the building, from March 17th, 1927, to January 10th, 1928.
The Neswit Realty Company mortgaged the lands to the defendant, Center Realty Company, for $125,000, which mortgage was recorded on April 14th, 1927; and it, the Neswith Realty Company, again mortgaged the lands to the Center Realty Company for the further sum of $10,000, which mortgage was recorded on September 29th, 1927.
On March 13th, 1928, Charles H. Engler Lumber Company, which had also furnished materials for the erection and construction of said building, filed a mechanic's lien against
the building and lands, and commenced action thereon in the Hudson County Circuit Court; in which action only the Neswit Realty Company, the owner of the land, was made a party defendant as the Engler company had subordinated its lien to the Center Realty Company mortgages. Judgment followed, and under an execution issued thereon, the sheriff sold the lands and premises on May 24th, 1928, for $1,861.71, subject to the mortgages of the Center Realty Company. As a matter of fact and law, the sale was subject to a number of other mortgages, then against the premises, as no attempt had been made to cut off the holders of the mortgages by making them defendants in the summons and complaint.
An order of distribution was made by the Circuit Court of the proceeds of the sale under the execution of the Engler judgment, in which distribution Posnak & Turkish, Incorporated, participated, receiving and accepting the sum of $487.84, as its distributive share of the proceeds of the sale, as one of the concurrent lien claimants. At the time of the distribution, seventeen mechanics' liens against the property, totaling about $55,000, and which included that of Posnak & Turkish, Incorporated, for $15,550.04, had been filed.
On April 23d, 1928, forty-one days after the filing of the Engler lien, and thirty-one days before the sale under the Engler execution, Posnak & Turkish, Incorporated, filed a mechanics' lien for $15,550.04 for the materials it had furnished for the erection and construction of the building and, on April 26th, 1928, commenced action thereon in the Hudson County Circuit Court, making the Center Realty Company, mortgagee, a defendant; and making all the other lien claimants, including the Engler Lumber Company, defendants, claiming that all the liens of the other claimants were subordinate to its lien because they had postponed and subordinated their liens to the liens of the Center Realty Company's mortgages. There was a trial of the action, without jury, by agreement, on June 30th, 1930, and, upon the above stated facts, the plaintiff moved for "a direction of verdict in favor of the plaintiff, generally against the owners
of Neswit Realty Company, and specially to be made of the lands and premises described in the lien claim and complaint, and to have priority over the mortgage of the Center Realty Company." This was denied by the trial judge, who, on the contrary, upon motion of defendant, did direct a verdict in favor of the defendant, Center Realty Company. It is from this directed verdict in favor of the Center Realty Company that we now have this appeal of the plaintiff, Posnak & Turkish, Incorporated; and, many, if not all, of the contentions ...