Friedman v. Borough of Waldwick

Supreme Court of New Jersey

Friedman v. Borough of Waldwick

150 A. 195, 8 N.J. Misc. 370, 1930 N.J. Sup. Ct. LEXIS 225

CourtSupreme Court of New Jersey

DecidedMay 6, 1930

StatusPublished

Cited by1 cases

This text of 150 A. 195 (Friedman v. Borough of Waldwick) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Friedman v. Borough of Waldwick, 150 A. 195, 8 N.J. Misc. 370, 1930 N.J. Sup. Ct. LEXIS 225 (N.J. 1930).

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Opinion

Per Curiam.

This matter is before us upon a demurrer to a return to an alternative writ of mandamus.

The relator recovered a judgment of $15,301.58 against the respondent on November 27th, 1928, which not being paid and satisfied, relator applied for and obtained an alternative writ of mandamus on November 23d, 1929, directed to the respondent. The return thereto sets up two reasons why such writ should be dismissed and a peremptory writ should not issue.

The first is that because between April 1st, 1924, and July 12th, 1924, three claims aggregating $486.44 were filed with respondent, as being amounts due from relator to said claimants. But this is no answer. In the first place, as pointed out by the relator, if these claims were not paid within sisty days from the date of their filing with respondent, the claimants were required to bring action thereon, or join in an action then instituted and in progress by some other claimant, in order to present their right of lien. The return is [371]*371silent as to any such action having been taken. It must be as-assumed, therefore, that none was taken and that the claimants have lost and forefeited their right of lien and payment thereof by the respondent from any moneys it had in hand due or to come due to the relator.

In the second place relator’s judgment cannot be successfully attacked in this manner under the present proceeding. Palmer, &c., v. Freeholders of Essex County, 77 N. J. L. 143.

The second reason urged in the return for a dismissal of the writ is that the respondent has adopted proper resolutions authorizing the issuance of obligations to secure the moneys to pay the relator the amount due him upon his judgment.

This, however, is no answer to the command of the writ which is immediately to levy and assess, by taxation, funds sufficient to fully pay and satisfy relator’s judgment.

The relator is entitled to judgment in his favor upon his demurrer with costs and an order for a peremptory writ of mandamus.

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Per Curiam.

This matter is before us upon a demurrer to a return to an alternative writ of mandamus.

The relator recovered a judgment of $15,301.58 against the respondent on November 27th, 1928, which not being paid and satisfied, relator applied for and obtained an alternative writ of mandamus on November 23d, 1929, directed to the respondent. The return thereto sets up two reasons why such writ should be dismissed and a peremptory writ should not issue.

The first is that because between April 1st, 1924, and July 12th, 1924, three claims aggregating $486.44 were filed with respondent, as being amounts due from relator to said claimants. But this is no answer. In the first place, as pointed out by the relator, if these claims were not paid within sisty days from the date of their filing with respondent, the claimants were required to bring action thereon, or join in an action then instituted and in progress by some other claimant, in order to present their right of lien. The return is [371]*371silent as to any such action having been taken. It must be as-assumed, therefore, that none was taken and that the claimants have lost and forefeited their right of lien and payment thereof by the respondent from any moneys it had in hand due or to come due to the relator.

In the second place relator’s judgment cannot be successfully attacked in this manner under the present proceeding. Palmer, &c., v. Freeholders of Essex County, 77 N. J. L. 143.

The second reason urged in the return for a dismissal of the writ is that the respondent has adopted proper resolutions authorizing the issuance of obligations to secure the moneys to pay the relator the amount due him upon his judgment.

This, however, is no answer to the command of the writ which is immediately to levy and assess, by taxation, funds sufficient to fully pay and satisfy relator’s judgment.

The relator is entitled to judgment in his favor upon his demurrer with costs and an order for a peremptory writ of mandamus.

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Bluebook (online)

150 A. 195, 8 N.J. Misc. 370, 1930 N.J. Sup. Ct. LEXIS 225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/friedman-v-borough-of-waldwick-nj-1930.

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