Samuel Cohen & Son v. Tudor Apartments, Inc.

7 N.J. Misc. 199

• Court: New Jersey Circuit Court
• Decided: July 1, 1929
• Status: Published

Opinion

Smith, J.

This application is made to amend the lien claim by adding Fidelity Union Title and Mortgage Guaranty Company, mortgagee, as a party thereto. In the suit instituted that company is made a defendant as mortgagee, and its lien by way of mortgage is sought to be held subject and subsequent to the lien claimant’s claim.

If I felt it necessary in order to sustain the plaintiff’s case against the 'mortgagee that it should be made a party to the lien claim, I would grant this motion, even though there is some question as to the right to do so under the decision of American Brick Co. v. Drinkhouse, 59 N. J. L. 462, because it would at least give an opportunity to have the question passed upon by the upper court, but from a reading of section 16 of the Mechanics’ Lien act, it does not seem necessary to make the mortgagee a party to the lien claim. It is sufficient that summons issued against it and it be made a party to the suit on the lien claim as required by section 23 of the act.

On this ground, therefore, the motion will be denied.