On appeal from the Essex County Circuit Court.
For the appellant, Maurice S. Maurer (Philip J. Schotland, on the brief).
For the respondents, Stein, McGlynn & Hannoch (Aaron Lasser, on the brief).
The opinion of the court was delivered by
CASE, J. The appellant is the plaintiff. It, a materialman, brought the action in 1928, under the first section of the Mechanics' Lien law. 3 Comp. Stat., p. 3291. The complaint alleged that the owners had made an agreement with one Sebastiani, as building contractor, for the construction of a building on their property; that the agreement had not been filed; that Sebastiani had purchased lumber from plaintiff for the construction of the building and that plaintiff claimed judgment, general against Sebastiani and specially to be made against the lands and buildings prior to any rights of the owners or the mortgagee therein. Sebastiani, the owners and the mortgagee were brought in as parties defendant. Judgment by default was entered against
Sebastiani. The remaining defendants answered and are now before this court as respondents. The salient defense presented by the pleadings is that the building was constructed under a contract in writing and that the contract, together with the specifications, was duly and seasonably filed in the Essex county clerk's office; and section 2 of the Mechanics' Lien law is invoked to give to the building and land immunity from liability to all save the contractor.
There was a reference, by consent, to a referee "to take and report an account between the plaintiff and the defendants herein and to report whether the plaintiff is entitled to judgment specially against the building and lands set forth in the complaint, and the question of priority of the liens of the plaintiff and the defendants, reserving to the parties hereto their respective rights of trial by jury." The referee filed a lengthy report, in the course of which he announced his conclusion that the contract, which was made with one Marinaccio, was fictitious and fraudulent and at the close of which he recommended a judgment as sought by the plaintiff. The respondents then filed exceptions to the report and demanded a jury trial. Pursuant to notice that at the trial they would move for an order prohibiting the use of the referee's report as prima facie evidence (Practice act of 1903, section 155; 3 Comp. Stat., p. 4101), respondents obtained such an order upon the grounds that "said report is improper and contains matters beyond the scope of the reference and is contrary to law." Trial was had before a jury and at its close there was a directed verdict in favor of the defendants and against the plaintiff.
Plaintiff specified three grounds of appeal: (1) The directed verdict; (2) the refusal to admit the report of the referee in evidence; (3) the order suppressing the referee's report.
The second and third grounds are in effect one and are so treated on appellant's brief as point 1.
We shall first consider the error said to attend the directed verdict. It is to be recalled that the appeal does not involve the liability of the one who purchased the goods to make
payment for the same. Plaintiff sold to Sebastiani and has its judgment against him. To go beyond this, and reach the lands of another, plaintiff must bring itself within the provisions of the Mechanics' Lien law. Section 1 of that law ...