author: Stevenson, Y. C.

text:
    McNab & Harlin Manufacturing Company v. The Paterson Building Company et al.
    [Decided April 28th, 1906.]
    1. Under section 3 of the Mechanics’ Lien law of 1898 a subcontractor furnishing for a building, in process of erection, an apparatus for opening and closing windows, making a lump charge for the apparatus installed, is entitled to the remedy by stop notice, the claim being regarded as growing out of materials furnished in situ.

    2. Such section should be liberally construed, both as to the lienability of the debt and the sufficiency of the stop notice.
    3. A stop notice which states that the material was sold to the contractor for the building, but does not expressly allege that it was actually used in the building, is, nevertheless, sufficient.
    á. The “notice in writing” prescribed by section 3 of a lienable debt for material used in the building consisted of three papers, as follows: (1) An order by the builder on the owner in favor of the claimant for $540. (2) An assignment executed by the builder under an erroneous but not misleading name, purporting to transfer to the claimant, out of the moneys due or to become due to the builder from the owner, $540.52 for work done and materials furnished by the claimant to the builder, and used by the builder in the erection of the building. (3) A notice addressed to the owner, signed by the claimant, setting forth the amount of the debt, the demand, the refusal and the notice to retain and pay, but apparently by a clerical error omitting to disclose for what the debt had been contracted. The notice stated that the debt was due to the claimant from the builder, but described such debt as $540.52, “by you, the said owner, used and employed in the erecting,” &e.—Held, that all the papers together constituted a sufficient “notice in writing,” under section 3.
    5. A subcontractor engaged to excavate a cellar for a building, and who does so with his teams and laborers, is not a laborer employed by a contractor, within the meaning of section 3 of the Mechanics’ Lien act of 1898, and is not entitled to the remedy by stop notice.
    On bin of interpleader. On final bearing upon statements of defendants of the grounds of their several claims to liens by stop notices under section 3 of the Mechanics’ Lien law.

      Mr. Jacob Willard De Toe, for George A. Meyers & Company.

      Messrs. W<wd & McGinnis, for the MehrhofE Brick Company.

      Mr. Peter Bentley and Mr. James F. Fielder, for Collins, Lavery & Gompany.

      Mr. Hugh McQuillan, for Martin Goble and for Cyril R. Forbes.

      Mr. Michael Dunn, for Cornelius J. Gallagher.

      Mr. Wood McKee, for James RadclifE & Sons.

      Mr. James G. Blauvelt, for the G. Drouve Company.

      Mr. William B. Gourley, for Joseph R. Graham.

      Mr. Edward F. Merrey, for Thomas F. McCran, receiver of the Paterson Building Company.
   Stevenson, Y. C.

After the fund ($5,027.97) had been paid into court in pursuance of the decree of interpleader, the ten defendants filed their respective “concise statements,” setting forth the grounds of their respective claims in accordance with the practice established by rule 221. The litigation thus set in court was brought to a final hearing on June 8th and 9th, 1905. After the testimony had been taken and counsel had been heard in regard to each claim, I announced orally my conclusions, setting forth in each case the reasons why the claim was either allowed in its place as a lien against the fund or rejected. -Four of the claims were disallowed under the rules laid down or followed by me in the case of Beckhard v. Rudolph, 59 Atl. Rep. 253 (decided June, 1904). Inasmuch as this Beclchard Case was then pending on appeal in the court of errors and appeals, I announced that the final decree in the present case would be withheld until the Beclchard Case had been decided in the court of last resort, and that if such decision reversed or modified the decree of this court a further hearing, then, would be had herein. The court of errors and appeals having reversed the decree advised by me in the Beckha-rd Case, all of the defendants were duly brought ipto court on notice of the settlement of the decree “in accordance with the decision of the court of chancery already announced in this case and the decision of the court of errors and appeals” in the Beclehcvrd Case. Inasmuch as neither the testimony nor the conclusions announced by me have been written out by the stenographer, I shall not undertake to set forth the grounds on which any claims are either rejected or allowed, excepting in the four cases above mentioned, viz., the respective eases of the G. Drouve Company, Martin Goble, Collins, Lavery & Company and Cornelius J. Gallagher. In regard to each of these four claims, all of which were disallowed, it has been argued that the decision of the court of errors and appeals in the Beclehard Case, or the opinion of that court formulated by Mr. Justice Pitney, compels its allowance. As to the other six claims, which embrace five alleged liens by stop notice, and the claim of the receiver of the corporation which erected the building-under the contract on file, no insistment is made that the decision of the court of errors and appeals in the Beckhard Case can possibly lead to a different result in any instance. Two of these five claims, on stop notice were allowed and the remaining three were disallowed. In ease an appeal should be taken from the decision of this court as to any one of these six claims, a brief additional opinion will be filed.

I am unable to distinguish the claim of the G. Drouve Company from the claim of Adamson & Son, which was sustained by the court of errors and appeals in Beckhard v. Rudolph. The claim of Adamson & Son was for the amount due for the plumbing which they had put into the building in pursuance of a subcontract. They supplied the materials and performed tire labor, and the elements of labor and materials in fact entered about equally into the total charge. The total charge, however, was a single sum for the entire contract. The court of errors and appeals decided that Adamson & Son were “materialmen,” who had “furnished materials used in the erection” of Mr. Beckhard’s building, and that the amount claimed by them in their notice to be due for “work done and materials furnished” in fact was due “for materials furnished in siiu” and that therefore they could acquire a lien by a stop notice under section 3 of the Mechanics’ Lien law.

In the present case, the G-. Drouve Company had a similar subcontract for the incorporation into the building of a system of bars or levers called the “Lovell apparatus,” a device for opening and closing windows. The total charge was $1,373.70. Although, as in the case of Adamson & Son, this total charge was in no way divided so as to indicate how much of it was for labor and how much of it was for material, it was evident that a very large portion of the charge represented the value of the apparatus or finished parts of the apparatus delivered at the building, all of which was material—raw material, so far as the building operations were concerned—and plainly lienable.

If any distinction could bé drawn between the notice which was deemed sufficient by the court of errors and appeals in the case of Adamson & Son and the notice served by the Gt. Drouve Company, the latter seems to follow the statute more closely than the former. The Adamson notice states that the material was furnished for the remodeling of the building, as well as in the erection and alteration thereof, whereas the notice in the Drouve case strictly adheres to the statutory language.

My conclusion is that it would be entirely unnecessary to discuss the principles enunciated by the court of errors and appeals, or inferable from the decision of that court, in the Beclchard Case, in order to determine the status of this claim of the G-. Drouve Company. The lienability of the debt by stop notice and the sufficiency of the notice are directly and necessarily established by this decision, which deals with substantially a parallel state of facts. My original ruling will therefore be changed, and the claim will be allowed in its place as a lien.

In each of the other three cases now to be considered we have a different state of facts from that which was presented to the court of errors and appeals on behalf of Adamson & Son in the case of Beckhard v. Rudolph. In order to determine these three cases, I think it is necessary to ascertain and follow not only the principles which are distinctly announced in the opinion of the court in the Beclchard Case, but also some of the principles which necessarily underlie the decision in that case. If I had taken time to set forth the fundamental rule of construction which I applied in the Beclchard Case, the court of last resort would perhaps have been led to make a deliverance which would have rendered a large part of the present discussion entirely unnecessary.

The questions to be discussed when perhaps narrowly defined are these—first, whether section 3 of the Mechanics’ Lien act is to be strictly or liberally construed so far as that section may give a lien to persons who are not journeymen or laborers, or, in other words, are not wage-earners, and second, whether, after the lienability of the debt has been established, a strict or liberal construction is to be placed upon the provisions of the statute which regulate the fastening of the debt as a lien on the fund by service of a notice in writing.

Fortunately it is not necessary to consider the broad question whether the Mechanics’ Lien law generally should be construed strictly or liberally, if indeed any such broad question is capable of accurate statement or intelligent discussion. For various methods of treating this subject and for illustrations of the “hopeless division of opinion” in regard to it, the following text-writers may be referred to, with the judicial decisions which they cite: Boisot Mech. L. (1897) § 8J/.; Phil. Mech. L. § 16; 2 Jones L. (2d ed.) § .1&S6; 20 Am. & Eng. Encycl. L. (2d ed.) 277, 278.

What we are endeavoring to discover in this case is the true meaning of a few words in our New Jersey statute, the construction of which, to a large extent, may be determined without affecting rights and remedies which are unrelated to each other or do not naturally stand in the same class.

The New Jersey Mechanics’ Lien law creates several radically different kinds of liens, and oftentimes a construction placed upon the statute in a case involving one kind of lien is equally applicable to cases involving an entirely different kind of lien. One lien may be of a character to induce the court to endeavor to sustain it by a liberal construction, whereas another lien may be of such a kind as to induce the court to exclude it, if possible, b3r a strict construction.

The elemental mechanics’ lien no doubt is of the kind which was created by the first Mechanics’ Lien law ever enacted in this country—the statute passed by the State of Maryland in 1791 “concerning the territory of Columbia and the city of Washington.” Md. L. 1791, ch. J¡S, X. This original Mechanics’ Lien law was created expressly “for the encouragement of master builders to undertake the building” of houses in the projected city of Washington, and the lien was confined so as to secure only debts which were owed by the owner of the property subjected to the lien. Precisely the same limitation of the scope of 'the lien appears in the first statute establishing a mechanics’ lien in any of the states. Pa. L. ISO'S ¶. S&l. This Pennsylvania statute is the origin of all our New Jersey legislation. Its title is substantially the same as that of our present statute. This first Pennsylvania law, like the original Mechanics’ Lien laws of New York and New Jers-e3r, was applicable to a narrow localit3r, and it was also limited to a period of less than four years. Shortly before the statute would have expired by its own limitation it was repealed and substituted by another statute having substantially the same title. Pa. L. 1806 p. lf-80. The new statute was narrowed in its application so as to include within its operation only the city of Philadelphia, but the debts which it undertook to secure by a lien included large numbers of claims for labor or materials for which the owner of the building charged with the lien would in no way be personally liable. The statute contained no provision for limiting the lien to the owner’s creditors by filing the contract.

Here we have the origin of the lien which is charged upon the property of one man to pay another man’s debts. This is the statute which first imposed upon the owners of real estate who desire to improve their property, and to make contracts for the erection of buildings thereon, the onerous task of discovering who the creditors of their contractors are, and then seeing that their claims are satisfied so far as they have arisen from the furnishing of labor or material to the erection of the owner’s buildings.

The slightest reflection will show how widely these two liens, created by precisely the same language, differ from each other in respect of their essential nature and their respective claims to favorable consideration from courts of justice. The first lien, the elemental mechanics’ lien, is little more than an extension of the common law lien afforded to large numbers of purveyors of labor and materials who add value to chattels under contract with the owner thereof. The second lien, arbitrarily granted to the contractor or materialman between whom and the owner there is no privity whatever, so far as I am aware," has no analogy in the common law, and stands in many respects directly in conflict with fundamental principles of justice. There are grounds for claiming, as recited in the original Maryland statute of 1791, that a mechanics’ lien, for the protection of the party with whom the owner of the building contracts, encourages the erection of buildings, but it would seem that the extension of this lien to the protection of the creditors of the party with whom the owner contracts must oftentimes have the effect to discourage the erection of buildings.

When we come to the lien by stop notice, which attaches not to the building, but to the fund in the owner’s hands and due from him to the contractor, we perceive two liens having different historical origins and differing widely from each other in a very important particular. One of these liens is that which the “journeyman or laborer employed by the contractor” enjoys for the better securing of the wages which he has earned. The general policy of the law may be considered to favor and prefer the claims of all wage-earners, whether on sea or on land. Our statutory law abounds with illustrations of this policy. Few landowners wlm erect buildings would contemplate with satisfaction the loss of any wages by the workmen employed on their buildings, whether they personally were in any way obligated to pay such wages or not. Large numbers of such owners of real estate would cheerfully exert themselves to see that the wage-earners employed by the contractors had received their dues. But there is no rule or principle of law and no- general^ policy or theory recognized by law, apart from mechanics’ lien statutes, which specially favors the collection of debts due to contractors and merchants merely because such debts have been created in the erection of buildings whose owners are not liable for such debts. Such a policy is the pure creation of an arbitrary statute and does not seem to have any ethical basis, nor can I perceive how the lien to the materialman by stop notice can be deemed to encourage the erection of buildings.

But without pursuing this subject further at present, what I desire to point out is that at the present time, under our Mechanics’ Lien law, there may be created two widely different kinds of lien upon the land, and also two widely different kinds of lien upon any fund in'the hands of the owner and due from him to the contractor. An examination of our peculiar American legislation on the subject of mechanics’ liens from the start shows how radically these four liens differ in their nature and in their origin, and here we find the first reason why the reported cases are so at variance in regard to the spirit in which the Mechanics’ Lien law should be construed.

Any consistent theory or rule of construction of our present Mechanics’ Lien law, as a whole, is also rendered difficult from the way in which that law has been created. As in the case of the other adjacent states, the origin of our statute is in a special law applicable to a limited territory. P. L. 1-8B0 ¶. lZlf.. This statute, then, from time to time was extended to other localities until, as revised in 1846, it included in its scope a very considerable portion of the state. Revision of 1.81^6 p. 71/-8 § 8. Still later the statute was extended to the entire state (P. L. 1\851 p. 187), and finally, in 1853, a new Mechanics’ Lien law was enacted for the entire state, which new statute was, to' a large extent, constructed out of the heterogeneous materials which composed the prior statutes. P. L. 1868 p. 1$7.

The question whether the Mechanics’ Lien law as it now stands, containing, as it does, without substantial change of phraseo! ogjr, the main provisions of the prior laws, should be strictly or liberally construed, is further made difficult by the fact that from time to time special interests have exerted an influence with the legislature so as to bring them within the beneficial operation of the statute. I am not aware that any commissioners or revisers have ever undertaken to draft a compíete Mechanics’ Lien law, based upon any definite and consistent legal or equitable principles.

Before reverting to the narrow question whether the statute, so far as it creates the lien by stop notice in favor of a debt of a materialman or a contractor—any. debt other than for wages— should be strictly or liberally construed, it may be well to glance at the history of our New Jersey legislation. The first New Jersey statute above referred to, passed in 1820, applied to a small tract of land in the county of Gloucester, which one Edward Sharp desired to lay out in building lots and develop into a town or city. The title and main provisions of this act were copied from the Pennsylvania act of 1806, and are substantially continued in our present statute. In order, however, to cut off the grossly inequitable lien which under the general terms of the act borrowed from the Pennsylvania statute was conferred upon the parties to whom the owner of the building was in no way indebted, substantially the same provision was inserted which is now embodied in section 2 of our present act, to the effect that the filing of the contract* should confine the lien to the contractor alone. If we may apply the principle that men and women, however ignorant, are presumed to know the law, the scheme of this statute as a whole might not be open to criticism, although in fact the provision for filing the contract has in large numbers of cases failed to protect the poor and the ignorant against a harsh and inequitable lien. It is plain, however, that the continuous policy of New Jersey has been to permit the owner of the building, who does not buy the materials or employ the labor used in its erection, a simple and comparatively inexpensive means for confining the liability of his property to lien to those persons with whom he contracts.

The act of 1820 made no provision for any lien by stop notice. This lien first appears in the act of 1835, which related to two townships in I-Iunterdon and Burlington counties, respectively. P. L. IBS'S p. H8. Section 3 of this statute, as printed (at p. ISO), provides for a lien by stop notice in favor of any journeyman or laborer employed by “any master or workman” to secure “wages” due to such journeyman or laborer, and the somewhat clumsy phraseology of this statute has been largely embodied in our present enactment. The phrase “master or workman,” if used in the act of 1835, was changed to “master workman” in the revised law of 184G. Revision of 184S p. 748 § 3. This lien by stop notice, originally, was not confined to- the case where the journeyman or laborer employed by the contractor was cut oil from a lien on the land by the filing of the written contract. When no contract was on file the journeyman or laborer had both liens—the ordinary lien on the building and also the lien on the fund by stop notice. There are dicta in all our courts which assume that this workman’s lien by stop notice, like the lien of ■the materialman, is now confined to the case where the owner’s contract has been filed, but the point is not discussed in the cases, and the amendatory legislation which effected such a change is not indicated. Weaver v. Atlantic Roofing Co., 57 N. J. Eq. (12 Dick.) 547, 550; Frank v. Freeholders, 39 N. J. Law (10 Vr.) 347, 350, 353 (1897); Beckhard v. Rudolph, supra. It may be that it will be held that all doubts in regard to this matter were removed by the changes of phraseology made in section 3 in the amended law of 1898.

The lien of the materialman by stop notice, from the start, has been confined to the case where he is cut off from filing a lien against the building by the filing of the contract between the contractor and the owner. Summermam v. Knowles, 33 N. J. Law (4 Vr.) 202. It does not seem to me that it is correct to hold that the lien by stop notice is given to the materialman because of any hardship inflicted upon hinr by the filing of the contract. The provision cutting off his lien upon the building by the filing of the contract is manifestly intended to prevent the gross hardship of imposing upon the owner a lien for a debt which he does not owe. The materialman, observing that the wage-earner had two liens under tire statute, one of which was not affected by the filing of the contract, while he (the material-man) had only one lien, which was cut off by the filing of the contract, secured from the legislature the advantage of the wage-earner’s second lien, the lien by stop notice; but the legislature declined to give the materialman this lien by stop notice in ease he could avail himself of his lien upon the building. Why the legislature saw fit to give this lien by stop notice to the materialman in any case, I have never been able to discover. Why the merchant who sells nails, or brick, or lumber, or other merchandise, should be permitted, in the event of his merchandise being incorporated into a building, to have a preference over the other creditors of his customer, is, I think, somewhat difficult to discern. He has no such preference if the customer to whom he sells the merchandise on credit incorporated that merchandise into personal property. But what reason, founded in sound morals or the just protection of trade, can be imagined fox permitting this particular class of dealers in tire market to compel their debtor’s debtor to come into their business affairs and see that their debt is paid? The unfortunate owner of real estate who has erected a building, in many cases like this, where large numbers of notices are served, is obliged to employ counsel, is made liable to actions at law, and oftentimes has difficulty and meets with expense which is not repaid to him, in coming into a court of equity on a bill of interpleader for relief, in order to disentangle himself from the business affairs and pecuniary demands of various traders with whom he has had no dealings, and to whom he owes no duty whatever excepting such as has been created by this arbitrary statute. This sort of legislation has been criticised as vicious class legislation. Such criticism may be deemed excessive, and even intemperate, and I am not obliged to adopt it, or, to use the language of Chief-Justice Green, to manifest a “design of impugning the wisdom or policy of the law.” Ayres v. Revere, 25 N. J. Law (1 Dutch.) 474, 481. I did, however, adopt the view, in the case of BecJchard v. Rudolph, that every dealer in merchandise who sells on credit, before he is allowed to claim this special advantage over other dealers and other creditors in the market, and to impose upon strangers the difficult and oftentimes expensive burden of seeing that his particular debt is paid, was bound to bring his case strictly within the words of the statute, and was then obliged to pursue the statute strictly in order .to fasten his lien upon the fund. It should be observed that the rule of construction which we are endeavoring to settle is not applicable to the lien by stop notice which the statute affords to the wage-earner. Oftentimes, the construction • of section 1, creating the lien on the land and building, applies equally to debts due from the owner which are within the original policy of the Mechanics’ Lien law, and to debts which the owner does not owe and the liens for which he is permittéd to 'cut off by filing his contract. See Ayres v. Revere, supra.

So, also, a construction placed upon section 3 may equally affect the lien of the poor wage-earner and the lien of the rich merchant or contractor.

In the present instance, however, we have to deal with the question of the lien by stop notice, provided by the statute for different classes of creditors of the contractor who are strangers to the owner, but who are not wage-earners. The fundamental principle applied by me in deciding the BecTchard Case undoubtedly was that subcontractors like Messrs. Adamson & Son were not entitled to a liberal construction of that portion of section 3 which creates a privileged class of dealers who are not wage-earners, and imposes for their benefit special burdens upon the owners of real estate. This whole view, I think, must now be deemed entirely erroneous since the decision and opinion of the court of errors and appeals in the Beckhard Case. It is true that the court of errors and appeals did not discuss the question whether the provision of the Mechanics’ Lien law under examination should be strictly construed or liberally construed, but it seems to me that a ruling in favor of a liberal construction is necessarily implied both in the deliverances which the court made and in the decision which the court rendered. The construction placed upon the statute by this court was rejected as arising from “too narrow a reading of the letter of the section,” and because it failed “to give due effect to the spirit of the act and to the antithesis that exists between the first and third sections.” The legislative intent to give the materialman a lien upon the fund as a substitute for the lien upon the building of which he is deprived by the filing of the contract is recognized and carried into effect not merely within the limits expressly prescribed by the phraseology of the statute, but in accordance with its general purpose and spirit. That the legislature of this state had continuously for jmars favored the lien of the material-man by stop notice is quite apparent. It lost no time after the publication of the decision of this court of the Beckhard Case in extending this lien to every class of subcontractors, including subcontractors who supply labor alone. P. L. 1&0S p. 311. Whether, since this recent amendment of section 3, subcontractors like the Messrs. Adamson & Son can take their choice either to give notice of their lien as materialmen or to give notice of it as subcontractors perhaps is a debatable question.

The policy of the legislature to favor the materialman to the disadvantage of the owners of land who erect buildings thereon has recently been considerably extended. No backward step has been taken. Sections 5 and 6 of our present act, which embrace recent amendments, interfere with and greatly impair the natural common-law right of the owner and the builder to modify their contract so as to subserve the convenience of the two contracting parties, even though without such modification the carrying out of the contract may become practically impossible. These sections evince a most positive intention on the part of the legislature to foster and extend the lien by stop notice, although it must be observed that these provisions apply to the wage-earners’ lien as well as to the lien of the materialman. The unfortunate owner who has filed his contract specifying the time and manner in which the contract price is to be paid is made a sort of involuntary trustee in respect of the moneys which the contractor may earn for the benefit of a favored class of tire contractor’s creditors, and to enable these creditors who are strangers to him to collect their debts, the owner and the builder are prevented from altering their contract for the accomplishment of their owm honest business purposes.

The legislature of the state having thus distinctly manifested a policy in favor of the lien by stop notice, which policy has been changed only by expansion, I think that the court of errors and appeals by this last decision establish the doctrine that the courts of the state are bound to give a full and fair effect to this legislative policy, so far as established rules of construction will permit. It is safe, I think now, to hold that all parties whose liens on the land are cut off by the filing of the contract are entitled to a liberal construction of the statute, so as to give them a lien on the contract price in the owner’s hands by stop notice.

It follows necessarily from this liberal rule of construction, by which the lienability of a debt by a stop notice is to be determined, that a correspondingly liberal construction should be placed upon the requirements in respect of the notice. Heretofore it has commonly been said that the holder of a lienable claim by stop notice must strictly pursue the statute or he would lose his lien. Superintendent v. Heath, 16 N. J. Eq. (2 McCart.) 22, 26 (1862). This proposition often has been stated in cases like the one last cited, where no question arose as to what the requirements of the statute were. The general principle is laid down by many authorities that the provisions of a Mechanics’ Lien law which “relate solely to the manner of enforcing the lien already given” are remedial, and hence should be liberally construed, while those parts of the law “upon which the right to the existence to a lien depends” should be strictly construed. 20 Am. ■& Eng. Encycl. L. {2d ed.) 278. Certainly it must follow a fortiori that a liberal construction of that part of the statute which creates the lien leads to a similar construction of that part of the statute which regulates the enforcement of the lien, unless the provisions relating to enforcement apply also to some other lien besides the favored lien. In the present instance it is plain that the lien of the wage-earner is entitled to'as much favor as the lien of the materialman, especially if, under the amended act of 1898, the wage-earner’s lien by stop notice exists only when the contract has been filed.

Messrs. Adamson & Son had a lienable debt by stop notice, according to this decision of our court of last resort. Messrs. Adamson & Son plainly were not “journeymen or laborers” employed by the contractor. They were adjudged entitled to a lien as materialmen. They are held to be persons who “have furnished materials used in the erection” of Mr. Beckhard’s building. They could not have any lien for work done. The performance of their subcontract for the installation of the plumbing in Mr. Beckhard’s house is deemed the supplying of materials in situ, and the contract price is the price of materials so installed. This is- the perfectly plain theory of the decision of the court of errors and appeals. And yet the notice which Messrs. Adamson & Son gave to the owner of the building stated most distinctly in two places that their debt was due to them for labor as well as for materials. It is evident that precisely this same notice might have been given by an architect or an engineer, or any employe of a subcontractor who held an accepted order for the amount due to him from the principal contractor, provided this person thus having a claim for labor against the principal contractor which was not lienable by stop notice had happened to sell such principal contractor some material for which a lien by stop notice could be acquired. The notice, however, which Messrs. Adamson & Son employed did in fact, in their case, describe a debt which the court of errors and appeals held to be lienable. It would seem to follow that where the debt is in fact lienable, the notice must not be deemed insufficient because it describes a debt which may or may not be lienable.

The opinion of the court of errors and appeals in the Beclchard Case- does not deal with the objection to the notice of Messrs. Adamson & Son which I endeavored to point out in my opinion, and which assumed that the debt in question for plumbing work was lienable by stop notice. The learned justice who wrote the opinion may have been misled by an erroneous syllabus published in the advance sheets of the “Atlantic Eeporter,” which was corrected in the permanent edition. ,519' Atl. Rep. £33 3 of sjdlabus. The fact, however, that the opinion of the court overlooked the objection to this stop, no tice which led me to deem it invalid, even after assuming that- the debt which it described in fact was lienable, is not a matter of any consequence. This notice of these materialmen, Messrs. Adamson & Son, was before the court, and the court unanimously held that a materialman’s notice which described his debt as due for work done, as well as for material furnished, was a sufficient notice where in fact the work done had been so connected with the furnishing of the materials that the whole transaction could properly be deemed within the meaning of the statute, the furnishing of materials in situ. The owner is not allowed to disregard such a notice from a materialman merely because it appears to claim a lien not only for material, but also for work done. The owner must look into the facts and ascertain whether the party who serves such a notice is or is not in fact a materialman—has or has not a claim for work done and materials furnished in such a way that the whole amounts to a claim for “materials furnished in situ.”

Precisely what are the requirements of the notice to the owner when the debt of the claimant is in fact lienable by stop notice under section 3 T am unable, with eertaintjq to ascertain. The statute describes a certain situation in which certain parties are placed which involves a “refusal” by one to pay money to the other. In order that the lien by stop notice may be fixed on the fund, notice must be given “of such refusal and of the amount due * * * and so demanded.” If the notice were required to be merely “of such refusal,” it seems plain that the statute could not be strictly complied with unless the notice set forth all the necessary facts and conditions under which the refusal was made. A very strict construction would even require that the notice, when given by a materialman, however it may now be in the ease of a journeyman or laborer, should state that the contract was on file. The express requirement, however, that the notice shall set forth the refusal and “the amount due and so demanded” certainly founds a forcible argument, based on the maxim expressio unius est exclusio altei'kis, that all the other essential facts and conditions which must precede tire refusal in order to the establishment of the lien need not be set forth in the notice. When the general principle is established that the legislative policj' is to favor the lien by stop notice under section 3 on behalf of all parties who would have liens under section 1 if the contract were not filed, it seems that a correspondingly favorable construction of the provisions of the statute defining the notice might property lead to this result, that if the notice states the two things which the statute expressly prescribes, viz., that there has been (1) a refusal to pay (2) a certain specified sum of money, the sufficiency of the notice in respect of all other matters depends upon whether or not it fairly apprises the owner to whom it is given that the party giving the notice claims to have a lienable debt for the amount stated, and that the notice is given to establish the lien. The notice is not a pleading. Its object is to put tlie party upon whom it is served upon the inquiry, and to inform him that a claim is made against him which he must investigate for the benefit of the party giving the notice. One of the burdens of the owner is that he must investigate and satisfy himself of the lien able nature of the claim and of the “correctness” of the demand which is made upon him. These notices are often drawn by business men who are unacquainted with legal forms. Upon the general theory, which we are now adopting, it seems to me there is ground for the argument that the notice need not contain things which the owner already knows. The sufficiency of a notice often depends on the question whether the party to whom it is given has or has not knowledge of certain other facts which are not stated in the notice. In the consideration of this matter regard may be had to the fact that it has never been held that the notice of the materialman should set forth that the contract between the owner and the builder has been filed,.and yet this fact lies at the very foundation of the lien. Gorlin's Forms \SW. The owner, however, presumably is aware of this fact, and the written paper served upon him would not be in the slightest degree more efficient as a notice if it set it forth.

I shall not, however, undertake to formulate any rule defining the exact requirements of a stop notice where the debt is lien-able as a matter of fact under section 3. What I have said is intended merely to indicate a general principle which may to a certain extent guide me in testing the sufficiency of the stop notices to be examined in this case. These notices can, I think, be tested by comparing them with the notice which in the case of Messrs. Adamson & Son has been established as sufficient, with the aid of the general principle that where the debt is lienable by stop notice and the stop notice specifies the two matters expressly prescribed by the statute, 'and the owner in fact did get notice by it that the party giving it claimed a lien-able debt which it was intended to establish, the court should make every possible effort to sustain it.

The above conclusion, I think, is strengthened by the adjudication in the Beclchard Case that the notice need not expressly state that the debt had been demanded. The statute only gives a lien where there has been a refusal “upon demand,” which phraseology, if not tautological, seems to imply that there may be a refusal not upon demand—a refusal which anticipates or excludes a demand. The statute also, in expressly prescribing the contents of the notice, specifies that it must exhibit both the refusal and the amount demanded. This express mandate, when construed with strictness, requires that the notice shall set forth merely (1) the refusal and (2) the amount. It must set forth tire amount due to the complainant and so demanded, but, after all, strictly, it is only the amount which the statute requires to be set forth. If the amount so set forth is subsequently proved in fact to have been due to the complainant and to have been demanded by him, the notice may be deemed to comply with the statute. A strict construction of the statute may thus be resorted to in order to sustain the notice of a lienable claim, but not to defeat such notice.

With the above principles in view, we may now proceed to consider the claim of Martin Goble. The claim, as proved, is for material, plainly lienable under section 3. I excluded the claim on the ground that the notice was defective in that it did not set forth that the material had been “used” in the erection of the building. The notice states that the claimant has “sold to the Paterson Building Company, for The building of the McNab & Harlin Mfg. Co./ on Straight street, Paterson, N. J., material to the amount of two hundred and thirty-four dollars and two cents,” &c. The demand and the refusal are set forth .and the owner is notified to retain the amount dué and pay it, after satisfying itself that the claim is correct. It is plain that this notice describes a claim wliich might be lienable. It contains the two things which the statute expressly requires to be inserted therein, viz., the amount due and the refusal of the corporation to pay that amount. The owner who received this notice was put on- the inquiry. It is true that upon all the facts being ascertained by the owner of subsequently proved in a court of law or a court of equity, it might be made to appear that the material sold by Mr. Goble to the builder for the building which the owner was erecting had not in fact been used in that building and the lien would then be defeated. This, however, is a matter of proof. No doubt if the notice must be treated as a pleading the omission of the essential fact that the materials had been used in the building is fatal. But having in view the function of the notice above set forth as an instrument to put the owner upon the inquiry, I think this notice should be deemed sufficient. It seems to me that it comes as near to a strict compliance with the statute as the notice of Messrs. Adamson & Son in Hie Beclchard Case. Messrs. Adam-son & Son gave notice that their debt was due, not only for materials furnished, but for work done. In fact they could have no lien whatever for work done, but only for materials furnished. The notice was served because the proof showed that while the debt was incurred in part for work done, such work was in contemplation of law so associated with the furnishing of materials that the entire claim for work done and materials furnished in fact stood for the furnishing of materials in situ. I may be in error, but I feel constrained to change my ruling in the case of Mr. Goble and allow his claim.

We next take up the claim of Collins, Lavery & Company, which was for lumber furnished to the contractor and used in the building. What Collins, Lavery & Company furnished was raw material, i. e., material which the contractor received and by his labor incorporated into the building. Collins, Lavery & Company had nothing whatever to do with the attaching of the materials which they furnished to the building as part thereof. They did not furnish the material in situ. There was no question about the lienability of the debt under section 3. The claim was disallowed by me because I deemed that the notice was insufficient. The “notice in writing,” in this instance, consists of three papers. Only one is set forth in the “statement” presenting the claim, but the other two papers were proved without objection, and the question argued was whether these papers, as a whole, satisfied the requirements of the statute. The “concise statement” of Collins, Lavery & Company may therefore be amended so as to set forth all three of these papers, or at least two of them.

The first paper is an order by the Paterson Building Com- - pany on the McNab & Harlin Manufacturing Company in favor of Collins, Lavery & Company for the sum of $540. This order was delivered, but not accepted.

The second paper is an assignment which erroneously describes the party making such assignment as “Hugh Montague, Joseph J. Eooney and Demiis J. Bergen, trading as and under the firm name of the Paterson Building Company.” This paper is executed by tire “Paterson Building Company, by J. J. Eooney, Treas.” It was drawn by the attorney of Collins, Lavery & Co.mpany under the mistaken impression that the Paterson Building Company was a partnership. The persons named as partners were the officers of the corporation. The assignment undertakes to transfer to Collins, Lavery & Company, “out of the moneys now due and owing, or hereafter to become due and owing,” to tire assignors “from McNab & Harlin Mfg. Co. for work done and materials furnished by the said Collins, Lavery & Co.” to- the assignors, and by the assignors “used in the erection and construction of a certain building for the said McNab & Harlin Mfg. Co., of.Paterson, New Jersey, the sum of five hundred and forty dollars and fifty-two cents.”

The third paper reads as follows:

“To MoNab £ Harlin Manufacturing Company, owner of the huildi/ng known as Eos. 868 to 878 Straight street, in the eity of Paterson and State pf Neiu Jersey:
“Take notice, that there is clue to us, Collins, Lavery & Company, from Hugh Montague, Joseph J. Rooney and Dennis A. Bergen, partners trading as the Paterson Building Company, the sum of five hundred forty dollars and fifty-two cents, by you, the said owner, used and employed in the erecting and constructing of your said building; that we have demanded payment of said contractors and they have refused to pay us, and we' therefore notify you to retain the amount so due out of the amount owing by you to the said- contractors, or that may hereafter become due from you to said contractors, for labor or materials used in the erection and construction of said building, and that you pay the same to us.
“Dated November 1st, 1903.
“Collins, Lavery & Company,
“Per S. B. Collins,
“President."

The assignment and the notice were delivered to the McNab & Harlin Manufacturing Company at the same time, on December 19th, 1903, although the assignment appears to have been executed on November 2d, 1903, which is also the date of the order.

The. order and assignment were entirely inoperative as against this receiver as transfers, inasmuch as the Paterson Building Company was insolvent at the time the instruments were executed, to the knowledge of Messrs. Collins, Lavery & Company. I think, however, that all the papers, and especially the assignment and the notice, must be taken together and examined with a view to ascertaining whether they amount in the aggregate to the “notice in writing” required by the statute in order to the establishment of the debt which they mention as a lien upon the fund in tire hand of the McNab & Iiarlin Manufacturing Company. The statute prescribes no form of notice; it merely directs that the lienor shall “give notice in writing to the owner” of certain things. If the owner in this case received notice, of these things by the two papers which were delivered to it, and which plainly related to the same matter, then it seems to me the statutory requirement was met and the lien was established. The description of the -contractor as a partnership instead of a corporation, in my opinion, is a mere misnomer, which could not possibly have misled the McNab & Iiarlin Manufacturing Company or any other party in any way interested in this transaction. To hold otherwise, it seems to me, would be to convert the notice into a technical instrument in the nature of a pleading, and to disregard the function of the notice as a means of merely giving information and putting a party upon the inquiry. The notice on its face plainly exhibits a clerical error, which probably was made by the operator on the typewriting machine who wrote out the paper for service. The debt ($540.52) is stated to have been used by the owner in erecting the building, but the notice goes on to state that the claimant had demanded payment of the contractor and that payment had been refused. The error could not have misled anyone and it was corrected by the distinct recitation in the assignment, by which the Paterson Building Company, misdescribed as a partnership, acknowledged that the debt ($540.52) was due “for work done and materials furnished by the said Collins, Lavery & Co.,” and used by the Paterson Building Company in the erection of the building. The notice distinctly sets forth the two things expressly prescribed by the statute, viz., (1) the refusal to pay, (2) a specified sum of money.

The difficulty about this notice, which caused me some hesitation, arises from the fact that it states-that the debt was due “for work done," as well as for materials furnished. In the case of Messrs. Adamson & Son their notice was sustained, although it stated that their claim was for work as well as for materials, while upon the proofs their lien was established as a lien for materials only. The notice, however, described correctly, in popular language, the nature of the debt for which the lien was claimed, although technically such description might be deemed inaccurate. In the case of Collins, Lavery & Company, I think it is plain that their debt, although due to them for materials within the contemplation of this statute, in fact must have included a charge for labor. The proofs showed that the materials were delivered by Collins, Lavery & Company, partly at the building, in Paterson, and partly, I think, on the cars. The price charged for which the lien was claimed included both the value of the material and the value of the labor which Collins, Lavery & Company expended in its transportation. It is somewhat difficult, I think, to distinguish between labor expended in the transportation of material to the building and labor expended in incorporating the material into' the structure itself. In each instance it would seem that the labor is “used" in the erection of a building. The notice, -therefore, in the case of Collins, Lavery & Company, while not correct according to the popular usage of language, and not technically correct under the statute, seems to have described with accuracy the debt for which a lien properly could be claimed.

We have, then, in this case a debt in fact lienable, a notice in writing describing a debt which might be lienable, as sufficient in form as that which was sustained in the Beclchard Case, and ample notice in fact to the owner, the McNab & Harlin Manufacturing Company, of the nature of the claimant’s debt, and that the notice was intended to establish a lien for the same. No case that I know of has held that if the notice on its face be sufficient, the lien fails in case it should turn out that the notice misdescribed the debt for which the lien was claimed, although the debt in fact was lienable.

My conclusion is that my original ruling in regard to this debt of Collins, Lavery & Company is inconsistent with the principles necessarily underlying the decision of the court of errors and appeals in the BecTchard Case, and therefore cannot stand. The defendant will be allowed its lien.

The last claim to be considered is that of Cornelius J. Gallagher. This is a debt due a subcontractor who excavated the cellar for the building with his teams and laborers at a price per cubic yard. There is no possible claim that Mr. Gallagher is a materialman. Ete is plainly a subcontractor, and as such would have a lien by stop notice under the act of 1905, above cited. He certainly was not a “journeyman” employed by anyone. If his debt was lienable under the statute which governs this case, it seems plain that he must be deemed “a laborer employed by the contractor.”

Giving the widest possible effect to the decision of the court of errors and appeals in the case of Beclchard v. Rudolph, I am unable to find that Mr. Gallagher was a “laborer” employed by the Paterson Building Company within the meaning of section 3. For years a lien by stop notice was given to “any journej'man or laborer employed” by the contractor to secure his “wages” before any such lien' was given to a materialman. When the lien was given to the materialman it was confined to those cases where the written contract with the owner was filed. Originally, as we have seen, there was no antithesis between the two sections which give the “journeyman or laborer” employed by the contractor his two distinct liens. I see no reason to believe that the legislature, when it made a great step in advance and gave the lien by stop notice to materialmen, changed the meaning of the words “journeyman and laborer,” which had been employed for years to describe persons who earned “wages.” It is the personal “wages” which are earned by a man in the direct employ of the contractor which manifestly the statute intended originally to secure.

That the word “laborer” in section 3 does not include a subcontractor who is an employer of labor is very strongly indicated by section 6 of our present act, which embodies an amendment of the statute passed in 1895. This section provides that “in all cases journeymen or laborers shall have priority or preference over any employers of labor, contractors or materialmen/for the payment of wages, without reference to- the date when said journeymen or laborers shall have filed the lien or served the notice provided for in this act.” Mr. Gallagher is plainly an. employer of labor, and belongs to- a class which the statute sharply distinguishes from journeymen or laborers employed by a contractor who earn wages.

I see no way by which this court can, by any construction of this statute, give Mr. Gallagher the lien which the legislature has now established, or attempted to establish, for all cases similar to his in the future, and which no- doubt it would have long-ago undertaken to give to the class of business men to whom Mr. Gallagher belongs if attention had been earlier. called to their case.

What is the exact status of subcontractors under this new and apparently hasty legislation may be a somewhat difficult matter to determine, and any discussion of the subject at present would be entirely out of place. It may be noted, however, that the subcontractor is placed in the same class with the journeyman or laborer employed by the contractor, and not in the same class with the materialman, which fact indicates that at the present time no lien by stop notice can be acquired by anyone if the owner's contract has not been filed. The case of the subcontractor is further complicated bjr the omission to make changes in the subsequent sections of the act, especially section 4, corresponding with the changes made in section 3.

In case any of the claimants desire to have the determination of this court reviewed by the court of errors and appeals, the fund will be held until such review can be obtained. I am by no means certain that the adjudications which I have made upon these notices will in the end stand as approved precedents. Questions of statutory construction are notoriously difficult and productive of discordant decisions and decisions by divided courts. When a statute like the one with which we are dealing is not in its entirety based upon any ethical principle, but arbitrarily confers a favor through a somewhat complex procedure upon a somewhat loosely-defined class of beneficiaries, and is expressed in clumsy and inapt phraseology, it is unsafe to accept any construction of it as final which has not been approved by the court of last resort or by a majority of the judges of such court.


source: Caselaw Access Project

author: Bergen, Y. C.

license: Public Domain

text:
    Abel W. Hartwell et al., executors, &c., v. Annie E. Martin.
    [Decided May 11th, 1906.]
    1. A testator, by his will, ordered his executors to make a settlement with his creditors of debts outstanding at the time of his assignment for the equal benefit of his creditors, as shown by a list to be found with the will. This list did not include the names of all of such creditors, and the debts were all extinguished by the assignment proceedings or barred by the statute of limitations.—Seld, that such provision is void as an attempt to bequeath property to persons only ascertainable by reference to a paper not executed as wills are required to be.
    2. Where two bequests are given by distinct instruments, as by will in one case and codicil in another, even if the amounts are alike, the presumption is in favor of both bequests, and the burden, of overthrowing the presumption is on the executor.
    On bill for construction of will.

      Mr. Carroll Robbins, for the complainants.

      Mr. Bayard Stochton, for the defendant W. H. Leggett.

      Mr. Peter Baches, for the Murphy estate, defendant.

      Mr. George J. Plechner, for David W. Martin, defendant.
   Bergen, Y. C.

The complainants, as executors of the last will of Alfred W. Martin, seek directions to aid them in the administration of the trusts in their hands under the will of their testator. Of the numerous questions presented in the bill of complaint, only four were pressed on the argument. The first arises under the second item of the will, which reads as follows:

“I wish my executors to make a settlement with my creditors of what debts I have outstanding- at the time I made an assignment, I think in 1872. Although not under obligations to pay these claims, yet I wish them paid. My executors must make a settlement of the principal, without interest, and I also wish those who have received their dividend to be paid less the dividend they received, as well as those creditors who did not hand in their claims. A list of all debts that I wish paid will be found enclosed with this will.”

The direction is to pay all his debts outstanding in 1872, without naming the persons to whom payment is to be made, and to ascertain who are embraced in that class he refers his representatives to "a list of all debts I wish■ paid ” to be found enclosed with his will. The will was executed in duplicate. One of them he gave to his executor, together with a list containing not only the names of some of his creditors in 1872, who had presented tlieir claims to his assignee, and of those who had not, but also a list of creditors to whom he was liable for subsequent debts. The names of the creditors and the amounts due are each set out with particularity. The other will the testator retained, and it was found in a box where he kept his valuable papers, and with it a partial list of his creditors at the date of the assignment and the amounts due each. This list does not correspond as to amounts, with the list held by his executor, for in some cases they are reduced, as appears from an inspection of the paper, to the extent of payments made by the testator after the execution of his will. It was shown on the trial that neither list contained the names of all the creditors mentioned in the schedule attached to the deed of assignment, nor of all the creditors who had proved and filed their claims. Under this state of facts such of the creditors as were omitted by the testator from the list he made out claim that under the terms, of the will they are to be considered in the class to be paid, and that the general direction to pay is not to be modified by the list left by the testator, according to which he expressed his intention that payments should be made. He was under no legal obligation to pay these debts, for they were all either extinguished by the assignment proceedings or subject to Hie statute of limitations, and I am of opinion that if the bequest is good it must be limited to the debts contained in the list left by the testator with the will.

It is insisted, however, by the other legatees, that the whole bequest is void, because the persons who were to take are not named individually, but as a class, and in order to ascertain who constitute the class reference must be made to a paper not executed according to the law of wills. It is clear that this case differs from one where legacies are given subject to deductions for advancements, to be ascertained from charges in a book of account, or other evidence thereof to which the testator may refer, for in such case the testamentary disposition is complete and needs no aid from other sources, although subject to debts or advancements, for they may be proved without reference to any memoranda. The gift is complete; its payment during the life of the testator, in whole or in part, may be shown in exoneration of it, and therefore, in determining the question under consideration, we arc afforded no assistance by Moore's Case, 61 N. J. Eq. (16 Dick.) 616, for there the disposition was testamentary, subject to advancements which the. testator restricted to the amount he considered he had advanced.

My conclusion on this branch of the case is that the bequest to tire creditors of the testator now under consideration is void, because it is an attempt to bequeath property to a class of persons who can only be ascertained by reference to a non-testamentary paper, which the testator might change from day to day, and thus enlarge or diminish his testamentary gifts as often as he chose without observing the rules of law relating to the testamentary disposition of property.. The effect, if it should be permitted, would be to allow a testator to declare the particular legatees to whom his estate should go without the formality required by law in such cases.

The second question argued was whether these debts should be paid in full or abate with the other legacies, the estate being insufficient to pay in full. As I have decided that the gift in satisfaction, of these old debts is void, the question of abatement does not arise. The third question is whether there is a cumulative legacy to David W. Martin. .The original will gives to the children of Jeremiah Martin, of whom David is one, each $200. In a codicil to his will, executed nearly four years after it, he bequeaths as follows: “And also to David Martin, of Metuchion, N. J., the sum of $200.” This bequest follows other small legacies to the testator’s relatives. -My conclusion is that this is an additional gift to David, and was not intended by the testator to be a substitute for the bequest to him in the will itself. The first bequest is to him as one of the children of his father; the second bequest is found in the first codicil to the will, executed nearly four years after the will, and where two bequests are given by distinct instruments, as by will in one case and codicil in another, even if the amounts are alike, the presumption is in favor of both bequests, and the burden of overthrowing the presumption is on the executor. DeWitt v. Yates, 10 Johns. 156. In this case no attempt has.been made to contest the presumption, and, on the other hand, it is strengthened by the fact that the same codicil revokes a legacy to David’s sister of $200, she having died after the will was executed, and it is a reasonable inference that the testator intended to give to- the brother the sum he took from the sister, thus continuing the same amount in his gifts to the family of Jeremiah Martin.

The fourth question is not unlike the one last disposed of. Tn the will $200 is given to each of the children of Isaac Laing, and in Hie codicil the following appears: “I also give and bequeath to the children of Isaac Laing, if any are living, the sum of $200 each.” In the codicil a number of legacies of $200 c-ach, given to legatees who had died between the publication of the will and the codicil, were revoked, because, as the testator states, “'it would be to small an amount to- divide among their heirs,” and by the same codicil he bequeaths a like sum to other legatees named in the will. I therefore think that the same presumption applies to the bequest in the codicil to the children of Isaac Laing as I have found in the case of David Martin, and that the bequest in the codicil to them was intended by the testator to be a gift in addition to that contained in the will.


author: Garrison, Y. C.

text:
    John V. O’Hara et al. v. Richard J. Nelson et al.
    [Decided February 19th, 1906.]
    The storing and using of gasoline in large quantities in a frame building, used as an automobile garage, situate in a thickly built-up portion of a large city, where there are numerous frame buildings, and where an explosion would cause serious injury to the adjacent property, and would be a serious menace to the lives of those in that vicinity, constitutes a nuisance which will be enjoined so far as to restrain the introduction of gasoline ihto the tanks of the automobiles while inside the building and the storing of automobiles with gasoline in their tanks.
    This is an application for a preliminary injunction to restrain the defendants from operating an automobile garage because of the noise, odor and danger arising therefrom.
    The complainants are John Y. O’Hara and Catharine O’Hara, and the appearing defendants are .Bichard J. Nelson and James Bay, and they will herein be called the defendants. The complainants are owners in common of a house and lot fronting on Cottage street, in Jersey 0%, and the defendants are the tenants of a recently erected building fronting upon the boulevard in the same city, which building is in use as an automobile garage. The land on which the garage is erected is owned by a Mrs. Childs. The building was commenced, some time in the middle of October, 1905, and was opened for business about the 20th of November, 1905. About the 5th of November this bill was filed.
    The application for a preliminary injunction was based upon the bill and affidavits, and was met by affidavits on behalf of the defendants, to which rebutting affidavits were filed by the complainants.
    The statements by the witnesses in their affidavits were so conflicting that counsel for each side requested the court to take the testimony of the witnesses in open court, which was done.

      Mrs. Chilcls, although she is a party defendant and filed an affidavit in her own behalf, did' not appear by counsel at the hearing.
    The testimony of a large number of witnesses was taken. The facts I find as follows:
    Mr. and Mrs. O’Hara, the complainants, own a property, twenty-five feet in front, on Cottage street, extending between parallel lines one hundred and twenty-five feet in depth. On this property there is erected a frame building three stories in height. The ground floor is occupied by the O’Haras, the family consisting of the fattier, mother and a seventeen-year-old daughter. The second and third floors are occupied by a tenant or tenants whose names are not given by any of the witnesses. The building extends back from Cottage street between forty and forty-five feet.
    The automobile garage of the defendants is erected on a lot about forty or fifty feet from the corner of Cottage street and the boulevard, and faces on the boulevard. It is about forty feet front by about seventy-five feet deep. It is of frame upon a brick foundation. The rear wall of the garage for about ten feet runs parallel and adjacent to the house of the complainants, and about four to five feet therefrom. The immediate neighborhood, as disclosed by the proofs, is shown to be as follows: On the corner of Cottage street and the boulevard there is a one-story frame building used as a candy store and ice cream parlor, occupied by a man named Patterson. A few feet intervene between this building and the automobile garage. Next to the garage, separated by a few feet from it, is'a two-story-and-basement house, occupied by Mrs. Albrecht, who keeps therein a boarding and lodging-house. Next to her house is a similar house, containing one other story, which is occupied by Mrs. Childs, who owns the land upon which that is erected, and also the land upon which the Albrecht boarding-house, the automobile garage and the Patterson store are erected. Next to Mrs. Childs, on the boulevard, is a real estate office, and next to that, and upon the corner of the boulevard and West Newark avenue, is a liquor saloon.
    Coming back now to the corner of Cottage street and the boulevard, immediately in the rear of Patterson’s ice cream saloon, but several feet therefrom, is the property line of the complainants, and on their property is erected the house heretofore described. Next to the complainants’ property there are vacant lots until the corner of the next street is reached, and upon that corner there is a five-story brick flat building erected. Across Cottage street the land is fenced in and is owned by a railroad company, and trains are there operated.
    The garage, as before stated, is forty feet in front and seventy-five feet deep. It has a capacity of between twenty and twenty-five automobiles of average size. The rear of the building is used as a shop for the repairing of automobiles and of'bicycles, so that at present there are no automobiles stored nearer than thirty feet from the rear wrall. There is a large door in the front of the building, and there are five windows in each side wall, one window in the rear wall, and three openings in the roof in the form of skylights. Upon the right, as you enter the garage, is á small office, and upon the left is a large cement floor, twelve by fifteen feet, where there is a washstand for cleaning the cars. Outside of the building, as you enter, there is buried in the earth some three feet a reservoir or tank of sheet iron capable of holding two barrels of liquid. This tank has two openings, in one of which there is a pipe leading into the barrel through which it is filled, and the other has a pipe leading -out of the tank and connecting with a pump, by which it is emptied. Attached to this last-named pipe there is wrha.t is known as a “Bowser pump,” which is specially designed for the pumping of gasoline, and is so constructed that it cannot, at any one time, bring up more than a gallon of gasoline. Of course, by setting the gauge at less than a gallon a less amount can be brought up at each complete operation of the pump. The purpose of limiting the amount which may be brought up at any one time is to minimize the chance of more gasoline than is needed being taken from the receptacle.
    The method of filling the tanks of the automobiles from the buried reservoir is to pump up the gasoline and gather it in a receptacle, which is in turn emptied into the tank of the automobile, which tank, when filled, or when as much as is intended is put into it, is closed by screwing down a cap.

      Mr. J. Merritt Lane, for the complainants.

      Mr. George J. Stillman and Mr. Arthur B. Archibald, for the defendants.
   Garrison, Y. C.

(after stating facts).

There are three distinct elements charged by the complainants as constituting the nuisance complained of. They complain of noise, of odor and of danger.

The evidence with respect to noise is so slight and the noises complained of were so casual and ordinary in their nature that I shall entirety dismiss this charge from consideration.

With respect to the charge of the emanation of disagreeable odors, I find the situation to> be this: Mr. and Mrs. O’Hara, and their daughter, each testify that at various times they smelled the odor of gasoline coming from the direction of' the garage. Opposed to this testimony there is that of Patterson, whose store is immediately next to- the garage; of Mrs. Albrecht, her domestic servant and a boarder and lodger in her house, which house, as has been before stated, is immediately next upon the other side of the garage; of Mrs. Childs and her daughter, who reside- immediately next to Mrs. Albrecht, and of a Mr. Smith, who lives across the boulevard from the garage.

The complainants seek to minimize the weight to be given to the testimony of Patterson, Mrs. Albrecht, her servant and her lodger, and Mrs. Childs and her daughter, by charging that the latter are, of course, directly interested, Mrs. Childs being the owner of the land in question and Mrs. Albrecht being interested because she is a tenant of Mrs. Childs, as also is Mr. Patterson; that the domestic servant testified that she did not know the odor of gasoline, and that the boarder in Mrs. Albrecht’s house lived in a room too high above the surface of the ground to readily detect the odor, if it existed. It must be kept in mind, however, that Mrs. Albrecht, her servant and her lodger, each testified that they were frequently in the yard of her house, which, is immediately next the garage, upon which yard, or adjacent to it, there opened live windows of the garage, and that each testified that they had never detected the odor of gasoline in the air.

Conceding that the criticism of the complainants in this respect is substantial, it is equally applicable to the complainants’ own evidence, which consists solely of the testimony of Mr. and Mrs. O’Hara, the complainants, and their daughter. If this odor was as prevalent as they would have us believe, it seems very strange that they have not produced any of the other occupants of their own house to testify to the existence of the odor, and that they have not produced any impartial witness thereto. If these complainants seriously intended to rest their right to the writ of injunction upon the proof of the presence in the atmosphere surrounding their house of odors emanating from the garage, they surely would have produced witnesses, unaffected by interest or bias, whose testimony would have been practically impregnable. If these odors are of the character they describe, they could have produced overwhelming evidence thereof by causing their premises to be visited by persons whose testimony would have carried conviction.

I find, therefore, as a fact, that the complainants have not produced sufficient evidence of the existence of odors emanating from the garage to entitle them, upon this preliminary application, to the relief prayed for.

This leaves for consideration that which I consider to be the serious question in this case. Briefly stated, that is whether, in a thickly built-up portion of a large city-—particularly where there are numerous frame buildings—-parties may store and use so dangerous a substance as gasoline in such large quantities that an explosion thereof would cause serious injury to the adjacent property and be a serious menace to the lives of those in that vicinity.

The expert testimony adduced is fortunately not conflicting, and may, in fact, be said to be accordant. This testimony.shows that what is commonly termed “gasoline” is the fourth distillate of crude petroleum. This fourth, distillate consists of what is termed “Naphtha,” which, in turn, is subdivided into “Naphtha, A B and C,” and gasoline is the common term applied to “Naphtha C.” It is so readily inflammable that it can scarcely be said to have any “flash point.” Flame coming in contact with it will almost inevitably and invariably ignite it without any appreciable period of previous heat.

If gasoline is brought in contact with flame, when the gasoline is unconfined within narrow limits, it will ignite without exploding. But if the gasoline is confined, and has been vaporized by coming in contact with the air, a gas or vapor is formed, which, when ignited, explodes with all of the incidents connected with the most disastrous character of explosion. One of the witnesses gave an instance of the explosion of a barrel of gasoline on the basement floor of a five-story building which completely wrecked the building, blowing off its roof and killing five persons. Gasoline vaporizes .almost instantly upon coming in contact with oxygen. So that, in common use, as soon as gasoline is exposed to the air some of it, at least, always goes off in the form of vapor, which vapor, being heavier than the air, tends to sink. The gravest source of danger with respect to handling gasoline is that since this vapor sinks it is not readily perceptible to one standing upright in a room, because it is along the lower levels and close to the floor, and if it is not agitated by the atmosphere so as to dissipate and blow away out of the room, is likely to be ignited by coming in contact with flame, the ignition causing an explosion, which, as before stated, is of sufficient force to cause great damage. This vapor, unless dispelled by a current of air and dissipated, is likely to travel considerable distance through a building, and will almost inevitably ignite and explode upon coming in contact with any flame.

It will be seen, therefore, that by burying in the earth the receptacle containing -the gasoline but little progress has been made toward safety in tire use of gasoline in any building. So soon as the gasoline is introduced inside of the building and is uncovered to the air vaporization immediately takes place, and this vapor is the ever-present source of danger.

When gasoline has been' placed in the tank of an automobile and the automobile is stored in a building, a slight leak from the tank would immediately cause vapor to form, having the characteristics just dealt with. It will thus be perceived, in the case in hand, that the source of danger is that gasoline is constantly being handled and stored in this building, and that inevitably some of it will become vapor and this will be an ever-present menace.

It cannot, of course, be said that gasoline cannot be handled so as not to cause an explosion, because it is shown to be the scientific fact that if the vapor is blown out of the building by a current of air, then there would be nothing present to explode; and it is also, of course, true that if no flame is ever brought in contact with the vapor its presence would be harmless. But this is too narrow a margin of safety upon which to predicate a finding that the danger is not actually imminent. It seems certain that the presence of some llame in this building at some time must be presupposed, and it also seems certain that in the habitual handling of this fluid, which immediately gives off vapor when ’ brought in contact with air, there will gather from time to time in this building this dangerous vapor, which will not always be promptly ejected by currents of air.

It will be borne in mind that, even with the seven machines now 'being stored in the building, an explosion which set fire to the building would inevitably cause an explosion of those seven tanks, provided they contained gasoline, which they almost inevitably would; and it is to be supposed that this garage will at some time in the future, if not in the very near future, secure more automobiles on storage, probably up to its limit of twenty or twenty-five.

The real question, therefore, seems to be whether the storage and use of so dangerous a substance in the midst of such surroundings is a nuisance. The initial inquiry, of course, is what one may do upon his own land without restraint at the instance of his neighbors. The house of lords, in the case of Fletcher v. Rylands, L. R. 3 H. L. 330; 1 Eng. Rul. Gas. 236, laid down the rule that one who brought anything upon .his own land which would be harmful to his neighbors if it escaped would be liable in the event of escape, even though no negligence were proven. This doctrine, in that case, was applied to' the bursting of a reservoir holding water.

This doctrine has been modified in England, and-while it has been adopted in some of the courts of our sister states, it has been modified or repudiated in others. Notes to '1 Eng. Bui. Cas. 266 et seq.

When the doctrine required consideration in this state, Chief-Justice Beasley, in Marshall v. Welwood, 38 N. J. Law (9 Vr.) 339 (1876), with his customary acumen, indicated the fallacy of the reasoning adopted in the cited case. He pointed out that the gathering of water in a reservoir upon one’s own land or premises was not per se a nuisance, and that therefore the landowner should not be held liable for the escape of the water unless it was due to his negligence. He held, similarly, that tire operation of a steam boiler upon one’s own land was not per se a nuisance.

The maintenance in its vigor of the doctrine of Fletcher v. Rylands, supra, would have practically stopped all progress. In the case of Brown v. Collins, 53 N. H. 442; 16 Am. Rep. 372, cited in 1 Eng. Rul. Gas. 274, the court shows that everything that a man can bring on his land is capable of escaping in some form and of doing damage after its escape.

It is necessary, therefore, for the courts to so administer the law as to meet the changing conditions of the times and to adapt it to existing conditions. Since the rights of every dweller in a community are relative and must be determined with respect to the interests of the entire body, the courts necessarily, in each ease, weigh the opposing interests and endeavor to arrive at a rule which will not conflict with the interests of the larger number, while it preserves, to the extent that it is reasonable, those of the minority.

With respect to the employment of such agencies as steam and the like, the courts hold that they are absolutely necessary to the progress of the community, and each member must suffer the incidental damage and liability to danger which arises from their non-negligent use. They are not nuisances if properly maintained and operated.

But it will be readily perceived that there is a class of things to which this reasoning does not apply—things inherently dangerous, liable to explosion without negligence of the owneiv, and so subject thereto that the greatest care is but slight assurance of safety. Bradford Glycerine Co. v. St. Mary’s Woolen Manufacturing Co., 60 Ohio St. 560; 45 L. R. A. 658 (at p. 661).

Gunpowder and nitroglycerine are examples of this class, and to a much greater extent are products of petroleum, tire vapors from which are insidious, treacherous and almost uncontrollable as respects danger of explosion.

The earlier cases dealing with gunpowder and nitroglycerine held that they were nuisances per se. See cases cited in note, 38 L. B. A. 308; Bradford Glycerine Co. v. St. Mary’s Woolen Manufacturing Co., supra.

The court of errors and appeals, in the case of McAndrews v. Collerd, 42 N. J. Law (13 Vr.) 189 (1880) (at p. 192), said: “The keeping of gunpowder, nitroglycerine or other ex-plosivo substances, in large quantities, in the vicinity of a dwelling-house or place of business, is a nuisance per se, and may be abated as such by action at law or injunction in equity.”

But in Simon v. Henry, 62 N. J. Law (33 Vr.) 486 (Supreme Court, 1896), the supreme court refused to apply this doctrine to a case where damage was done in the course of blasting in the construction of a public sewer through a highway. This latter case follows the decision of Booth v. R. W. & O. R. Co., 140 N. Y. 267. In that case the court held that the temporary use of explosives in order to adapt one’s own premises to a lawful use, where the mode adopted was tire only practicable one, and the work was prosecuted with due care and without negligence, was not a nuisance. But it was very careful to point out that there was a manifest distinction between acts and uses which are permanent and continuous and temporary acts which are resorted to in the course of adapting premises to' some lawful use. And it cites those cases theretofore decided in the courts of New York holding that the keeping of gunpowder in large quantities near inhabited dwellings is a nuisance.

The distinction between a permanent and a temporary use is again alluded to in Garvey v. Long Island Railway Co., 159 N. Y. 324; 32 Lawy. Ed. 920.

I am of opinion that the same tendency heretofore alluded to has caused the courts to modify the arbitrary rule which regai’ded these things as nuisances per se, and that the present rule is that whether they are or are not nuisances depends upon the locality, the quantity and the surrounding circumstances, and the method and manner of keeping and use. Heeg v. Licht, 80 N. Y. 579; Rudder v. Koopmann, 37 L. R. A. 489; Kinney v. Koopmann, 37 L. R. A. 497; Kleebauer v. Western Fuse and Explosive Co., 60 L. R. A. 377; Collins v. Alabama G. S. R. Co., 61 Am. & Eng. R. R. Cas. 229 (1894); High Inj. (3d ed.) 593 § 776 et seq.; 1 Pom. Rem. (5 Pom. Eq. Jur. 3d ed.) 869 § 515 et'seq.; Barnes v. Zettlemoyer, 62 S. W. Rep. 111; Flynn v. Butler, 75 N. E. Rep. 730.

In the case of Heeg v. Licht, supra, it is said: “In a city, with buildings immediately contiguous and persons constantly passing, there could be no question that such an erection [a powder magazine] would be unlawful and unauthorized. * * * That the defendant’s establishment was outside of the territorial limits of a city does not relieve the owner from responsibility or alter the case if the dangerous erection was in close contiguity with dwelling-houses or buildings which might be injured or destroyed in case of an explosion. The fact that the magazine was liable to such a contingency, which could not be guarded against or averted by the greatest degree of care and vigilance, evinces its dangerous character, and might in some localities render it a private nuisance. * * * The keeping or manufacturing of gunpowder or of fireworks does not necessarily constitute a nuisance per se. That depends upon the locality, the quantity and the surrounding circumstances, and not entirely upon the degree of care used.”

If this be the rule with respect to gunpowder a fortiori, should it be applied to gasoline? “As an explosive,” it is said, “the danger is ten times greater than that of gunpowder. It ignites as soon as the blaze is applied to it and becomes explosive when the vapor from it mingles with the atmosphere, in which there happens to be a burning lamp or other light.” Standard Oil Co. v. Tierney, 14 L. R. A. 677 (at p. 682).

It must, of course, be understood that I am not resting this decision upon the dangers to surrounding property arising from fire. I am aware of the decisions which hold that increased danger of fire is not a sufficient reason to restrain that which canses the increase of danger. It was well' said by Chief-Justice Thompson, of the Pennsylvania supreme court, in Rhodes v. Dunbar, 57 Pa. St. 274; 98 Am. Dec. 221, cited with approval in Rudder v. Koopmann, supra: “It is not on the ground alone of their liability to fire, primarily or even secondarily, that they may possibly be dealt with as nuisances, but on account of their liability to explosion by contact with the smallest spark of fire, and the utter impossibility to guard against the consequences, or set bounds to the injury, which, being instantaneous, extends alike to property and persons within its reach. The destructiveness of these agents results from the irrepressible gases, once set in motion, infinitely more than from the fires which might ensue as a consequence. Persons and property in the neighborhood of a burning building, let it burn ever so fiercely, in most cases, have a chance of escaping injury. Not so when explosive forces instantly prostrate everything near them, as in the instances of powder, nitroglycerine and other chemicals of an explosive or intensely inflammable nature.”

If the ease were at common law, it would be ieft to the jury to determine whether this inherently dangerous thing was a nuisance, in view of the locality, the circumstances, the amount kept and the care shown.

It has been held that whether a given state of facts, if found to exist by a jury, constitutes a nuisance, is ordinarily one of law for the court, or, at least, a mixed question of law and fact. Mayor of Frostburg v. Hitchens, 68 Md. 100 or 6 Am. St. Rep. 422.

In equity, upon an application for an injunction to abate a nuisance, I am of opinion that if the facts are Clear it is the duty of the court to determine the question, and there is no occasion to send it to law.

In the case in hand, the facts are practically undisputed.

Vehicles propelled by power within themselves now exist in great numbers, and must undoubtedly be considered as among the useful things at the disposal .of mankind. Legislation respecting their presence and conduct upon the highway is constantly being enacted. They are licensed by the state. The court would, not be justified, therefore, in applying obsolete rules to this situation, but must adapt the principles of law to the existing conditions. In a proper locality, amidst proper sun'oundings, it is not unlawful for tire dangerous fluid used in these vehicles to be stored and used to fill the tanks of the vehicles, or for the vehicles with the fluid within them tto be stored. But there is no occasion to relax the general principle so as to hold that this dangerous fluid may, because it is usable by these vehicles, be stored or used in a locality utterly unsuited and amidst surroundings not fitted and to an amount giving rise to great danger, or that the filled vehicles may be so stored.

The defendants have procured from the city a permit. This pape]’ was not put in evidence, but it was stated by counsel, and is therefore an admission in the case to be dealt with, that it permitted the storage, outside of the building, but upon the premises, of one barrel of gasoline.

The facts are that in this frame building there are already stored automobiles, and it is the intention to store others, which contain tanks capable of holding ten gallons each of gasoline; that the gasoline from the underground tank is pumped into the building and there exposed to the air, and is placed in the tanks of the automobiles.

It is apparent, therefore, that in the usual course of business in this establishment there will always be within it tanks containing gasoline to a very large amount.

If Hie garage were filled to its capacity there would be twenty machines, containing ten. gallons each, or two hundred gallons of gasoline. The permit is only for one’ barrel, or fifty-five gallons, and that must be kept outside of the building.

■ The danger arising from this fluid is created entirely by its use within a building or confined place, and leaking tanks of automobiles would be a very grave source of danger, since, as has been before explained, the vapor would sink to. the floor, where it would be in close proximity to the lamps of the automobiles, which will undoubtedly be lighted when they come into the building at night, or when they are being prepared to go out. The drivers of tlie automobiles and tire users thereof, coming in and out of the building, will undoubtedly at times be careless in the use of matches.

All this takes place in a frame building in a residential neighborhood, in close proximity to other frame buildings, and to dwelling-houses in which a number of people abide. The building is almost directly upon the street, where those passing may well, by careless throwing of matches and the like, cause the apprehended explosion.

I am clearly of opinion that it is the duty of the court to restrain the defendants, with respect to the storage and use of this dangerous material upon their own premises, to such an extent as will have due regard for the interests of the complainant.

Courts of equity constantly, in cases of nuisance, prohibit such parts of what is being done as are found to constitute the nuisance.

The court, upon a preliminary hearing, where the facts are practically undisputed and where a final hearing would be but a repetition of the preliminary hearing, grants relief, even in cases requiring a mandatory injunction. National Docks Railway Co. v. Pennsylvania Railroad Co., 54 N. J. Eq. (9 Dick.) 10 (Chancellor McGill, 1895).

I find that the defendant should be restrained from introducing gasoline into the tanks of the automobiles inside the building and from storing automobiles i with gasoline in their tanks inside of the building. By filling the tanks of the1 automobiles outside the building, and by emptying the tanks before the automobiles are taken into the building, the danger is minimized to the point where, under the necessities of the case, the complainants and others must endure the remaining risk.

The injunction, therefore, will restrain the storage or use of gasoline within the building.

The defendants cannot complain here that the complainants did not promptly act upon, receipt of knowledge. As has been already noted, the building was commenced some time in the middle of October, and by the 5th of November this bill was filed,. so that the defendants had ample opportunity to either arrange their business so as not to constitute a nuisance or to go elsewhere to carry on the business if it could not be so arranged.

I will advise an order in accordance with these conclusions.