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Congdon v. Jersey Construction Co.

Decided: May 18, 1959.

E. LESTER CONGDON, T/A E.L. CONGDON LUMBER CO., PLAINTIFF-APPELLANT,
v.
JERSEY CONSTRUCTION CO., INC., ET ALS., DEFENDANTS-RESPONDENTS



Price, Conford and Gaulkin. The opinion of the court was delivered by Conford, J.A.D.

Conford

We have here for review partial summary judgments entered by the Law Division disposing of part of the complex subject matter involved in a complaint, counterclaim and cross-claim. We do not have the benefit of an opinion by the trial court.

Plaintiff is a lumber dealer who sold building materials to the defendant Frank R. McCauley or his corporate affiliates, Jersey Construction Co., Inc. and Jersey Developers,

Inc., allegedly used by them in constructing three houses at White Meadow Lake and two at Denville. The defendant Yanowsky, a lawyer, operating in the name of a law associate, the defendant Boris Seeber, advanced mortgage money for these construction enterprises. After commencement of this action Seeber assigned his interest in the mortgages to the defendant Betty Maurer, an employee of Yanowsky, who thus appears to be trustee for the latter. She was substituted for Seeber as a party defendant.

The complaint is in ten counts. By the first three plaintiff seeks general judgments against the McCauley interests for the price of building materials sold them and used in the White Meadows Lake properties, and an adjudication of a mechanic's lien as to such claims superior to the lien of the Maurer mortgages. By the fourth and fifth counts plaintiff seeks to foreclose mortgages totalling $4,100 on the Denville properties and to have the liens adjudicated to be prior to the Maurer mortgages on these properties. Counts six to nine do not concern us here. In the tenth count plaintiff seeks an accounting of certain alleged obligations owing to the McCauley interests by Yanowsky for the purpose of applying such credits toward the alleged indebtednesses of McCauley and his corporations to the plaintiff.

The defendant Maurer by her answer denies plaintiff's claimed lien rights and disputes their priority as against her mortgages, claiming, inter alia , postponement of plaintiff's liens to her mortgages. She counterclaims and cross-claims for the foreclosure of six mortgages, three on separate lots at White Meadow Lake in the face amount of $13,500 each, and three on two lots at Denville, one lot being encumbered by two mortgages in the respective face amounts of $10,500 and $5,000, and the other by a mortgage for $11,500.

The following summary judgments were entered by the trial court:

(a) in favor of Maurer on the counterclaim and cross-claim (hereinafter referred to as the Maurer judgment)

adjudicating the amounts and absolute priority of mortgage liens on the several properties, inclusive of principal, interest, other charges, "attorney's fees" and "counsel fees," aggregating $13,786.67, $7,350.26, $6,710.63, $12,105.51, $4,196.70 and $6,379.28, respectively.

(b) dismissing the tenth count of the complaint wherein plaintiff sought an accounting against Yanowsky (hereinafter referred to as the Yanowsky judgment).

Plaintiff's appeals challenge the propriety of the entry of summary judgment in either of the respects ...


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