On appeal from Superior Court, Chancery Division.
For modification -- Chief Justice Vanderbilt and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. Opposed -- None. The opinion of the court was delivered by Burling, J.
[15 NJ Page 435] This appeal stems from an action of interpleader by Bankers Title and Abstract Company (hereinafter called Bankers Title), a New Jersey corporation, plaintiff, in which Elmwood Stores, Inc., (hereinafter called Elmwood), a New Jersey corporation, subsequently was joined as a party plaintiff, filed on August 18, 1952 in the Superior Court, Chancery Division. Judgment of interpleader was entered on February 17, 1953 requiring the plaintiffs to pay into the Superior Court the sum of $18,737.45, allowing them taxed costs and a counsel fee, to be paid to
them by the clerk of the court out of the fund so deposited, and exonerating them from any liability to the defendants, namely The Ferber Company (hereinafter called Ferber), Campbell-Morrell Supply Co., (hereinafter called Campbell), Union Building and Investment Co., (hereinafter called Union), Max Platt, Inc., (hereinafter called Platt), Construction Specialties, Inc., (hereinafter called Specialties), Peoples Trust Company of Bergen County, (hereinafter called Peoples Trust), Zaro Concrete Co., Inc., (hereinafter called Zaro) and The United States of America, (hereinafter called the United States). The judgment of interpleader also dismissed the action as against defendants Ferber and Zaro by virtue of their denial of interest in the fund. The several remaining defendants above named were required by the judgment to interplead their respective claims to the fund, namely the $18,737.45 deposited in court, less the taxed costs and $1,000 counsel fee adjudged in favor of the plaintiffs Elmwood and Bankers Title. Subsequently final judgment was entered in the Superior Court, Chancery Division, on October 13, 1953 settling the respective rights of the interpleading defendants to the balance of the fund in question. It is from this final judgment that the present appeals were taken by the United States and by Union. The appeals were addressed to the Superior Court, Appellate Division, but prior to hearing there were consolidated and were certified on our own motion.
The facts in this matter were settled by stipulation and the interpleading defendants expressly agreed that the pretrial order supersede the pleadings insofar as their contentions concerning their respective claims to the fund were in issue.
The factual situation developed in the stipulation of the parties is complex. Elmwood, owner of the land in East Paterson, Bergen County, New Jersey, on August 30, 1950 entered into a written contract with Ferber, as general contractor, for the erection and construction of a shopping center on Elmwood's land. Prior to the inception of work, the
building contract with a copy of the specifications was filed, September 6, 1950, in the office of the Clerk of Bergen County. Zaro entered into a subcontract (for concrete and other work) with Ferber. Zaro then entered into agreements with Platt, Campbell, Specialties and Union to furnish "materials, etc.," which were used in connection with the erection and construction of the shopping center for Elmwood.
On May 23, 1951 Zaro executed an assignment to Union of all Zaro's interest to the extent of $10,154.04 in moneys due or to become due to Zaro from Ferber under the subcontract hereinbefore mentioned. And on September 27, 1951 Zaro executed a comparable assignment to the extent of $768.45 to Peoples Trust. Copies of these assignments were served on Ferber, and the latter acknowledged receipt thereof.
Platt, Campbell and Specialties performed their respective agreements, and there became due and owing to them from Zaro under these agreements the following sums: Platt, $7,778.20; Campbell, $525; and Specialties, $691.19. They made demand on Zaro for payment, which was refused.
Thereupon Campbell filed a stop notice against Elmwood on February 19, 1952, and Platt filed a stop notice against Elmwood on March 21, 1952. Copies of these stop notices were duly served upon Elmwood, Ferber and Zaro.
On May 6, 1952, a final sum of $202,776.09 became due and owing from Elmwood to Ferber under the construction contract of August 30, 1950 hereinabove mentioned. It was also stipulated that on the same day, May 6, 1952, there became due and owing from Ferber to Zaro, under their subcontract, the sum of $18,737.45.
Elmwood, on May 7, 1952, paid Ferber $184,038.64 and retained $18,737.45 which sum on the same day, Elmwood, with Zaro's consent, deposited with Bankers Title as Elmwood's escrow holder, reciting the fact that claims thereto had been made by the United States, Campbell, Platt and Union.
On July 3, 1952 Platt instituted an action in the Superior Court, Law Division, against Elmwood, on the claim represented by its stop notice, ante.
Specialties subsequently, on August 7, 1952, filed a stop notice against Elmwood, and copies were served on Elmwood, Ferber and Zaro.
It is observed that it was stipulated by all parties that the claims of Platt, Campbell and Specialties hereinbefore adverted to were undisputed in amount, and unpaid. Zaro admitted that the amount due Union was $10,154.04 and admitted that the amount due Peoples Trust was $768.45. Zaro further admitted in the stipulation of facts and pretrial order in the present matter that at the time thereof there was due from Zaro to the United States the sum of $52,152.43.
Insofar as the claims of the United States are concerned, it was stipulated by all parties to the present action that these claims consisted of assessments against Zaro for unpaid income, federal insurance contributions, federal unemployment and federal withholding taxes, notices of unpaid assessments thereon having been filed in the Bergen County Clerk's office on various dates since May 21, 1949. A levy on certain of these assessments (specific identification is not disclosed by the stipulation) was made on Ferber, in the amount of $37,328.43, on January 31, 1952. A list of assessments and dates of recording thereof was incorporated in the pretrial order and stipulation of facts (examination of the assessments listed demonstrates that Zaro as of August 7, 1952, owed the United States upwards of $110,000 in unpaid assessments). An ...