Plaintiff contractor was hired by defendant, S & E Construction Company, Inc., a New Jersey corporation, to complete subdivision improvements on lands of defendant Great American Builders, Inc., also a New Jersey corporation, in the town of West Orange, New Jersey.
Plaintiff instituted this action in order to recover money damages for work allegedly performed in accordance with its contract with S & E. Great American is made a defendant on the theory that it is the real beneficiary of the work performed by plaintiff. It is alleged that in effect both defendants are one and the same and that S & E, in fact, is merely a fiction created by Great American to defraud creditors. Plaintiff further alleges that if he were to recover judgment against S & E, and such judgment were to be unsatisfied because of S & E's absence of assets, then defendant Great American would be unjustly enriched.
Plaintiff asks that a lien be placed upon the lands of Great American so as to insure the collection of any money judgment which he is able to realize against either defendant. Complaint was filed by plaintiff in this cause of action on May 11, 1961. Subsequently, on October 26, 1961, plaintiff filed notice of lis pendens.
The court in this action faces the issue of whether or not plaintiff is entitled to file a lis pendens which would preclude Great American from engaging in its sole business endeavor, the erecting and selling of dwellings, when the sole relief sought by plaintiff is a money judgment. Although plaintiff also attempts to "pierce the corporate veil" of S & E to reach the assets of Great American, this issue is clearly collateral to the primary question, in that even if plaintiff were successful on such an approach, he would remain entitled only to a money judgment against Great American.
The lis pendens procedure is governed by N.J.S. 2 A:15-6 et seq. Specifically, N.J.S. 2 A:15-6 provides as follows:
"In every action, instituted in any court of this state having civil jurisdiction, the object of which is to enforce a lien, other than a mechanic's lien, upon real estate or to affect the title to real estate or a lien or encumbrance thereon, plaintiff or his attorney shall, after the filing of the complaint, file in the office of the county clerk or register of deeds and mortgages, as the case may be, of the county in which the affected real estate is situate, a written notice of the pendency of the action, which shall set forth the title and the general object thereof, with a description of the affected real estate.
No notice of lis pendens shall be filed under this article in any action to recover a judgment for money or damages only." (Emphasis added)
Defendant seeks a discharge of the filed notice of lis pendens pursuant to N.J.S. 2 A:15-10 which declares:
"If plaintiff in an action as to which a notice of lis pendens has been filed as herein required fails to prosecute the same diligently, the court wherein the action is pending may, for such cause or for
other good cause shown, by order direct the county clerk or register of deeds and mortgages, as the case may be, to ...