BERGEN, V. C.
Interpleader by Franklin G. Turner against Howard J. Miller and others. Bill dismissed.
Bourgeois & Sooy, for William E. Lee. Thompson & Cole, for Somers Land Co. W. I. Garrison, for Christian Clegg.
BERGEN, V. C. The bill here presented should never have been filed. The disposition of the fund, about which complainant expresses doubt, is directed by statute, a reading of which would have removed any fancied doubt. The complainant had in hand a fund due the defendant Miller, a contractor, on a contract between himself and the complainant for erecting a building. As the contract was filed with the county clerk, the remedy of laborers and materialmen whose debts remained unpaid was the giving of a notice to the owner to retain the amount due out of the balance in hand due to the contractor and pay it to the claimant The defendant Lee served such a notice July 9, 1904, for $321.97, a copy of which, within five days, complainant served on the contractor, which notice, for the purposes of this case may be assumed, answered the requirements of the statute that a notice of the demand must be given the contractor within five days after notice to the owner. At least, this view is most favorable to the complainant. After such notice the owner becomes liable to pay the claimant the amount set out in the notice, upon being satisfied of its correctness, unless the debtor shall notify him in writing that he has given to the claimant a written notice that he disputes the claim and requests him to establish the same by judgment. As it does not appear that the contractor ever gave any such notice, either to the claimants or the owner, the latter became bound under the statute to pay, upon being satisfied of the correctness of the claim; but a captious dissatisfaction will not justify a refusal. Reeve v. Elmendorf, 38 N. J. Law, 125, 129. No want of such legal satisfaction is alleged. On the contrary, upon notice to the debtor, it is not charged he disputed the claim, and so far as the bill of complaint shows there did not exist any reason for doubt. The allegation that the defendant Clegg hadthreatened to file a mechanic's lien for a debt due to him has no force, in view of the fact that the contract was properly filed and the owner thereby protected from any real danger of loss from that quarter.
There was only one other claimant, who had served a notice after Lee, and, as it was not pretended in the bill that thereby any right prior to Lee had been acquired, the duty of complainant was so clear and free from doubt that it seems to me his course in filing this bill and walking away with costs and counsel fees, taken from a sum always insufficient to meet the amounts due to the qualified claimants, would not have been countenanced, had the claimants protested. They have not done so, and having submitted to the course taken, thereby expressing their willingness to accept what is left, I will advise a decree directing the payment, first, to William E. Lee of the amount due him, with interest, and, second, to the Somers Lumber Company whatever balance may remain, so far as it may be necessary or will extend towards the payment of its claim; it not appearing that its claim is subject to any greater doubt than the claim of Lee. The practice of filing interpleader bills in cases as free from doubt as this should be discountenanced, and counsel alert to call the attention of the court to such useless proceeding.