Opinion
03-25-1898
TER KNILE v. REDDICK et al.
Luther Shafer, for complainant. Milton Demarest, for defendant Terhune. Peter W. Stagg, for defendant Cisco. Frank P. McDermott, for defendant House.
Suit by Jacob Ter Knile against Milo Reddick and others, in chancery. Dismissed.
Luther Shafer, for complainant.
Milton Demarest, for defendant Terhune.
Peter W. Stagg, for defendant Cisco.
Frank P. McDermott, for defendant House.
STEVENS, V. C. The pleadings in this case are meager in their statements of fact. As no replications were filed or proofs taken, the case stands, and was argued, on bill and answer alone. The bill is a bill of interpleader. It avers that complainant en tered into an agreement in writing with one Milo Reddick, a contractor, for the erection of a dwelling house; that the contract was filed in the office of the clerk of Bergen county; and that the building was constructed thereunder. It then avers that complainant received notices of certain claims for materials and labor, some of which he paid. It alleges that the balance of $1,008.25 still remaining due the contractor is insufficient to discharge the claims of which the complainanthas been notified. It alleges the complainant's willingness to pay this money to the persons lawfully entitled to receive it, and prays that he be allowed to pay it into court, and that defendants may be decreed to interplead, and settle their right to it. The defendants are the contractor and seven claimants of the fund. The contractor has not answered. All the claimants, with one exception, have. The answers, with one exception, deny the right of complainant to take this proceeding. I will consider the case of each defendant separately.
The bill alleges that the defendant Cisco makes a personal claim upon the complainant in respect of a part of his work. This the answer admits, averring its validity. In this situation of affairs, the suit cannot be maintained as against Cisco. The rule is well settled that a complainant who is under any personal liability to defendant in respect to the matter concerning which he asks that defendant be compelled to interplead cannot maintain his suit against him. Wakeman v. Kingsland, 46 N. J. Eq. 113, 18 Atl. 680. The same difficulty exists in the case of the defendant Octtignon.
As to the defendant House, the facts set up in the bill and answer fail to show that he has any claim upon the fund under the mechanic's lien law. No demand is alleged to have been made upon the contractor, and no notice of a refusal of such demand is alleged to have been given to the owner. Hall v. Baldwin, 45 N. J. Eq. 858, 18 Atl. 976; Reeve v. Elmendorf, 38 N. J. Law, 125. The meager statement of facts in reference to the claim of Hildebrant, who has not answered, would seem to indicate that his claim is open to the same objection. It is the duty of the complainant to state with fullness and certainty the facts upon which his claim to equitable relief rests. If the facts which he states do not warrant such relief, he cannot have it. Arnett v. Welch's Ex'rs, 46 N. J. Eq. 547, 20 Atl. 48.
There remain for consideration the claims of Serven, Duncan, and Terhune. As to these claims, the bill fails to show any reason for invoking the assistance of equity. The order in which claims must be paid by an owner who has received the statutory notice is perfectly well settled. Superintendent v. Heath, 15 N. J. Eq. 22; Kirtland v. Moore, 40 N. J. Eq. 106. If, therefore, there is in the Dill nothing more than an allegation that complainant "received, in the order following, notices from the following named persons for the sums respectively specified herein; * * * that is to say, James Serven, materials, $478.89; Alexander Duncan, labor and materials, $275.00; Charles E. Terhune, labor and materials, $275.70,"—no reason is shown for the interposition of equity. The bill fails to allege that there is the least doubt or dispute as to the priorities of the respective claims of these three persons. It does not allege any facts from which the existence of such doubt or dispute is properly inferable. The foundation of the jurisdiction is therefore wanting, for this is based upon the existence of a conflict. If the claims are not shown to be conflicting, the necessity for a resort to equity does not appear.
I may add that the bill, on its face, is a bill of strict interpleader, and not a bill in the nature of a bill of interpleader. The fact that a larger deposit than the sum of $1,008.25 mentioned in it was brought into court, with a view to the obtaining of an injunction to stop certain actions at law, does not and could not alter its real character. If this larger sum (sufficient to pay all the claims in full) had been named therein, the bill would have been altogether anomalous. The bill should be dismissed.