MECHANICS' LIEN-LEGISLATIVE POWER TO PASS STATUTES OF LIMITATION WHICH SHALL APPLY TO PRESENT CONTRACTS

CONSTRUCTION OF SUCH STATUTES.

Annie E. Barnaby v. The Bradley & Currier Company.

Opinion by Depue, J., Court of Errors and Appeals, March Term, 1897. 31 Vroom 159.

The Bradley & Currier Company, the plaintiff below, filed a claim under the Mechanics' Lien law for work and materials furnished for the erection and construction of a building situate in the county of Union. In the suit to enforce the lien, the builder, Frank A. Barnaby, did not file a plea, but Annie E. Barnaby, the owner, appeared and filed the statutory plea, averring that the debt was not a lien upon her property.

The work performed and the materials furnished for which the lien was claimed were done and furnished under a contract dated June 2d, 1894. The work was commenced on the 10th of July, 1894. and completed February 20th, 1895. The lien claim was filed on the 15th of January, 1896, and the summons was issued on that day.

At the time the contract in question was made the lien law in forcewas the act of March 27th, 1874, by the thirteenth section of which, one year from the furnishing of the materials or performing the labor for which the debt is due was prescribed as the time within which the claim should be filed. Rev., p. 671. The lien claim filed in this case was filed within the year in conformity to this statute.

By the act of March 14th, 1895, several of the sections of the Mechanics' Lien law of 1874 were amended, among which was section 13. By that section, as amended, it was provided that no debt should be a lien by virtue of this act unless a claim is filed within four months of the last work done or materials furnished for which such debt is due, nor shall any lien be enforced by virtue of this act unlessthe summons in the suit for that purpose shall be issued within ninety days of the last work done or materials furnished in such claim. Gen. Stat., p. 2074. The lien in question in this case, although filed within the time limited by the act of 1874, was not filed within the time prescribed by the act of 1895.

By the act of 1895 all acts and parts of acts inconsistent therewith were repealed and the act was made to take effect immediately.

The only question presented by the bill of exceptions is whether the act of 1895, with respect to the time within which the lien was required to be filed, shall be permitted to control in this case. The learned judge before whom this case was tried instructed the jury that the act of 1895 did not deprive the plaintiff of its right to file its claim within one year from the time the work was completed. This instruction is the subject-matter of the assignment of error in this case.

It is not disputed that, as a general rule, a statute which is amended is thereafter, for all acts subsequently done, to be construed as the statute stands after the amendments are introduced (Farrell v. State, 25 Vroom 421), nor is it denied that the Legislature may pass statutes of limitation which shall apply to existing contracts, if a reasonable time within which to bring suit is allowed. The question to be considered is the effect of the third section of the "Act relative to statutes," of March 27th, 1874, which is in these words: "That the repeal of any statutory provision by this act, or by any act of the Legislature hereafter passed, shall not affect or impair any act done or right vested or accrued, or any proceeding, suit or prosecution had or commenced in any civil cause before such repeal shall take effect; but every such act done or right vested or accrued, or prosecution had or commenced, shall remain in full force and effect, to all intents and purposes, as if such statutory provision so repealed had remained in force, except that where the course of practice or procedure for the enforcement of such right or the prosecution of such suit shall be changed, actions then pending or thereafter commenced shall be conducted, as near as may be, in accordance with such altered practice or procedure." Gen. Stat., p. 3194.

A provision of like character was comprised in the Revision of 1846, but was limited to the repeal of statutory provisions by the repealing act reported by the revisers. Rev. Stat., p. 675, § 2. This was the statute that was construed by this court in Warren Railroad Co. v. Town of Belvidere, 6 Vroom 584, 587. In the Revision of 1875 the statute of 1845 was extended to acts thereafter to be passed, and the legislative intent was made clearer by the exception which was added with respect to "the course of practice or

procedure for the enforcement of such right or the prosecution of such suit," and the provision that "actions then pending or thereafter to be commenced should be conducted as near as may be in accordance with such altered practice or procedure."

This statutory provision preserves intact from future legislation rights vested or accrued under existing legislation, except "where the course of practice or procedure for the enforcement of such right. or prosecution of such suit shall be changed." This exception refers to practice or procedure in the conduct of the suit, and not practice or procedure which directly affects the right which the statute was designed to protect. Wilson v. Herbert, 12 Vroom 455, 457. A like construction has been given to the fourth section, which relates to criminal prosecutions and actions for penalties. State v. Crusius, 28 Id. 279, 282.

The rule prescribed by this statute as the fundamental rule for the construction of statutes will prevail, except where the Legislature has, either in express language or by implication so strong as not to be resisted, indicated the legislative purpose to supersede this rule of statutory construction.

The work done and materials furnished for which this lien was filed had all been done and furnished before the act of 1895 was passed. By the statute in force when the contract was made and the work done, the debt for labor performed and materials furnished for the erection of the building became a lien on such building and on the land whereon it stands, and such lien, by force of the statute itself, and without any claim being filed, was continued for one year from the furnishing of the materials or performing the labor for which the debt was due.

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To give the act of 1895 the effect of limiting the time for which the statutory lien of the prior act should continue without the claim being filed, would deprive the plaintiff of a right with respect to its debt which it had when its contract was made and the work was done. The language of the third section of the act concerning statutes is: "That the repeal of any statutory provision * * shall not affect or impair any act done or right vested or accrued * * * before such repeal shall take effect, but every such act done or right vested or accrued * shall remain in full force and effect to all intents and purposes as if such statutory provision so repealed had remained in full force." The exception is "that where

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the practice or procedure for the enforcement of such right * * shall be changed, actions shall be conducted as near as may be in accordance with such altered practice or procedure."

The plaintiff's lien for its debt accrued under the act of 1874, and by force of that act the lien was continued without a claim being filed for a term which did not expire until some time after the lapse of the limitation prescribed by the act of 1895. It is undeniable that the act of 1895 cannot in any sense be regarded simply as establishing a course of practice or procedure in actions for the enforcement of a right which accrued under the preceding act. If applied in this suit the act of 1895 would affect and impair and even destroy a right of the plaintiff which accrued to it under the preceding act within the meaning of the third section of the act relative to statutes.

The judgment should be affirmed.

THE LAW OF MASTER AND SERVANT.

At the request of the Bureau, Mr. Frank Bergen, of Elizabeth, a gentleman well known throughout the State as a leading member of its bar, has prepared the paper which follows, on the law of master and servant as it is to-day in New Jersey. The object of the paper is best explained by quoting Mr. Bergen's letter which accompanied it :

"My object was to show (1) that the present law on the subject is exclusively judge-made, and has come to be a mass of legal subtleties more fruitful of controversy and litigation than capable of doing justice either to employer or employe; (2) to suggest that the law itself be improved by judicious revision and restatement in the form of a statute; (3) to suggest a means by which employers, in consideration of paying a certain sum in insurance premiums, would be relieved of further liability and claims for damages, which sometimes absorb more than the profits of business enterprises; and (4) to provide compensation for injuries to workmen with reasonable promptness and certainty. In the proposed statute I have suggested, I would make it very clear that the great variety of legal quibbles which now too often constitute successful defenses, should no longer be permitted to have that effect."

THE LAW OF MASTER AND SERVANT.

BY FRANK BERGEN, COUNSELOR-AT-LAW.

During the past twenty years numerous disconnected statutes have been enacted by the Legislature in efforts to promote the welfare of workingmen. The practice of employing children in factories has been limited; the number of hours that shall constitute a day's labor in certain cases has been prescribed; a law to promote the amicable adjustment of disputes between employers and workmen has been