4. MUNICIPAL CORPORATIONS (§ 373*) - Mu- | In the absence of evidence of the amount of NICIPAL BUILDINGS-CONSTRUCTION-LIENS lumber supplied by Hazard & Co. which had -PENDENCY OF SUIT-NOTICE. been used in the building at the time the notices of claim of lien were filed, I am unable to discern how the notices can be made effective under the provisions of the act. It appears that the remaining portion of the lumber was subsequently used in the building by the second contractor, but no notices of claim of lien have been filed based upon that

Where no notice of the pendency of a suit to enforce a lien on the price of a municipal building was filed with the financial officer of the municipality within the period named in 2 Gen. St. 1895, p.. 2078, § 4, as required thereby, such omission was not cured by an acknowledgment of service of subpoena issued by the claimant within the time, by the solicitor of the municipality.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 913; Dec. Dig. § 373.*]

5. MUNICIPAL CORPORATIONS (§ 373*) - MuNICIPAL BUILDINGS-LIENS-JOINT CLAIMS. A claimant of a lien on the fund applicable to the construction of a municipal building may properly include in his claim items furnished to him by another materialman, and used in the building, for which the latter might have been entitled to an independent lien.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 913; Dec. Dig. § 373.*]

Action between Horace C. Hazard and another, consolidated for the purpose of enforcing municipal liens against the Board of Education of the School District of the Borough of Swedesboro and others. Distribution decreed.

fact.

Another objection to the claim of Hazard & Co. is, I think, fatal. The first section of the act confers a lien only when the requirements of the second section of the act are complied with. The requirements of the second section of the act are that two notices of claim of lien shall be filed, one with the chairman of the board having charge of the work, and the other with the "financial officer" of the municipality. The language of the act is entirely clear in this respect. The defendant municipality is a school district, and the board which had charge of the work was the board of education of that school district. The notice of claim of lien of Hazard & Co. which was intended for the finan

cial officer of the school district was filed with the treasurer of the borough of Swedesboro. It seems impossible to regard that officer as the financial officer of the school dis

Martin W. Lane, for Hazard & Co. Joseph J. Summerill, for James J. Davidson and Louis Dietrich. David O. Watkins, for Joseph D. Horner. French & Richards, for Thomas Partridge Ward. Charles V. D. Jo-trict which made the contract for the erecline, for Charles Warner Company. Austin H. Swackhamer, for Louis P. Mayer. Lewis Starr, for Board of Education of Swedesboro.

LEAMING, V. C. The present controversy relates to sufficiency of several claims of lien which have been asserted under the provisions of the municipal lien act (2 Gen. St. 1895, p. 2078).

As certain objections are made to the claim of Horace C. Hazard & Co. which are not applicable to other claims, these objections will be first considered.

tion of the building in question. The school district is an independent municipal organization, with its own officers, and includes within its boundaries the borough of Swedesboro and the township of Swedesboro. The treasurer of the borough of Swedesboro and the corresponding officer of the township of Swedesboro have no connection whatever with the school district or its affairs, except to turn over to it certain taxes which are collected within the borough and township, respectively, for the school district. It seems impossible, therefore, to regard either the treasurer of the borough or the collector or treasurer of the township as financial officers of the school district even in a limited

At the time the notices of claim of lien were filed by Hazard & Co., the lumber referred to in the notices had been supplied to the contractor, but only a portion of the lum-sense. While they have financial duties to perber so supplied had been actually used in the building. The portion so used has not been ascertained. The second section of the lien statute requires the notices to specify "that the labor was performed or materials furnished to the said contractor, and were actually performed or used in the execution and completion of the said contract with said city," etc. It seems clear that under this legislative requirement no lien can be claim ed for material which has been, at the date of the notices of the lien, supplied to the contractor, and which has not been, at that time, used in the building. This view has been adopted by this court, in National Fire Proofing Company v. Daly, 74 Atl. 152, 155.

form which inure to the benefit of the school district, they are not, in fact, officers of the district. The lien statute must also be deemed to have had a rational purpose, and it seems quite impossible to conceive a legislative contemplation of benefits to flow to a school district from a notice of claim of lien filed with a borough or township treasurer. I am obliged to conclude that the treasurer of the borough of Swedesboro, with whom one of the statutory notices of claim of lien of Hazard & Co. was filed, cannot be properly regarded as a financial officer of the school district of Swedesboro within the meaning of the act in question.

As to the remaining claims, but two classes

of objections have been raised.

As to some of the claims, it is urged that the notices of claim of lien have not been filed with the financial officer of the school district; as to other claims, it is urged that no notice of the pendency of an action for their enforcement has been filed pursuant to the requirements of the fourth section of the act.

Some of the claimants have filed their notices of claim of lien with the district clerk of the school district as its financial officer, while others have filed with the custodian of school moneys as the financial officer of the district. All claimants have filed duplicate notices with the chairman of the board of education. It is therefore necessary to ascertain who is the financial officer of a school district within the meaning of the act.

In a popular sense the custodian would un-
doubtedly be regarded as the financial officer,
as he is the officer who is intrusted with the
finances of the district, and I entertain no
doubt that a notice filed with him as the
financial officer meets the requirements of the
act; but I am also convinced that he is not
so distinctively or exclusively the financial
officer of the district as to justify the conclu-
sions that a notice filed with the district
clerk fails to comply with the spirit of the
act. The district clerk has duties to perform
which are, in their nature, essentially finan-
cial duties. The duty is imposed upon him
to "pay out by orders drawn on the custodian
of the school moneys
all school
moneys of the district." He is required to
keep a detailed account of all the expendi-
tures, and to report to each regular meeting
of the board the amount for which warrants
have been drawn since his preceding report,
and to disclose in such reports the several
accounts against which the warrants have
been drawn and the balance to the credit of
each account. At the annual meeting of the
school district he is required to make a state-
ment of the financial condition of the dis-
trict, and a copy of such statement is trans-
mitted to the county superintendent of
schools. Acts 1903, § 91. He may also be
given the power of purchasing supplies for
the schools. Acts 1903, § 90. These and other
provisions of the school law disclose that the
district clerk is the officer who, as clerk and
as a member of the board, is above all others
In touch with the affairs of the district, and
who, above all others, is acquainted with the
detailed finances and financial condition of
the district. If, therefore, force is to be giv-
en to the provision of the act now in ques-
tion in harmony with its manifest spirit and
purpose to insure to the district adequate
notice of the lien, it seems impossible to deny
the sanction of the act to a notice filed in
duplicate with the district clerk and presi-
dent of the board. My conclusion is that
either the custodian of school moneys or the
district clerk may be properly regarded as
the financial officer of a school district, and
that a notice filed with either of them as the
financial officer of the district is within the
spirit and reason of the municipal liens' act.

In Hall v. Jersey City, 62 N. J. Eq. 489, 495, 50 Atl. 603, 606, this court held that a notice filed with the comptroller of the city of Jersey City sufficiently complied with the requirement of the act that the notice should be filed with the "financial officer." The view was there taken that the duties of the comptroller of that city were such that he was, 'par excellence,' the financial officer of the city." An examination of the school law, passed at the special session of the Legislature October 13, 1903, and its amendments, will disclose that no officer exists in school districts with duties similar to those of the comptroller of Jersey City. Each school district is required to elect a board of education, and that board elects from its members a president, vice president, and district clerk. Acts 1903 (Sp. Sess.) c. 1, § 85. Each school district is also required to have a custodian of school moneys, who receives and pays out all moneys of the district. Acts 1903, § 184. The custodian of school moneys may be the same person who is treasurer of the municipality in which the district is situate, or the board of education may designate the collector of such municipality as the custodian, and where, as here, the school district contains more than one municipality, the board of education may appoint any suitable person as custodian. P. L. 1904, p. 341. All bills are passed upon in the first and final instance by the board of education, and, if allowed, orders or warrants for their payment are drawn on the custodian by the district clerk, As already stated, objections are also made and countersigned by the president of the to some of the claims because notices of the board. An examination of the detailed stat-pendency of the action for the enforcement of utory duties of the custodian and district the liens, referred to in the fourth section clerk will disclose that neither can be said to be the financial officer of a school district in the broad or comprehensive sense in which that term is applied to a minister of finance in continental Europe or to the Chancellor of the Exchequer in England or to the Secretary of the Treasury in the United States or to the comptroller in many of our cities; but both the custodian and district clerk may be appropriately said to be financial officers in the narrower or more restricted sense that they have some financial duties to perform.

of the act, were not filed by the claimants. The force of the requirements of that section of the act has been recently considered in this court by Vice Chancellor Stevens in National Fire Proofing Company v. Daly, 74 Atl. 152. It is there held that when one notice of pendency of an action is filed, it is unnecessary for the other claimants who are named therein to file similar notices. That decision must control my action in this case. I will, however, call attention to the case of McDermott v. McDonald, 50 N. Y. Super. Ct.

153. The decision in that case is in harmony | ed, the notice of claim of lien was filed with the views expressed by Vice Chancellor March 23, 1908, with the president of the Stevens. It construes the New York act, of board of education and with the treasurer which our act is a copy, at a time prior to of the borough of Swedesboro. Suit was the adoption of the New York act by our brought in this court to enforce the lien by Legislature. In that view the decision may bill filed June 20, 1908. No notice of the be appropriately regarded as adopted by our pendency of the suit was filed by claimant Legislature as a part of the act. It should at any time. The first suit in which a notice also be observed that Newman Lumber Co. of pendency was filed was that of claimant v. Wemple, 56 Misc. Rep. 168, 107 N. Y. Joseph D. Horner. That suit was brought by Supp. 318, appears to be based on the New Horner by bill filed August 6, 1908, and on York statute of 1902, and McAllister v. Case August 12, 1908, a notice of the pendency of (Com. Pl.) 5 N. Y. Supp. 918, appears to be the Horner suit was filed by Horner with based on the New York statute of 1885. the custodian of school moneys. The Horner suit made Hazard & Co. a defendant, and the notice of pendency of the suit which was filed named Hazard & Co. as a defendant. It will thus be observed that no notice of the pendency of the Hazard & Co. suit was filed by any one within 90 days from the date of the filing of the notice of claim of lien by Hazard & Co. The lien was therefore lost by reason of no notice of the pendency of the suit being filed with the financial officer within the period named in the fourth section of the act. It is urged that, as the solicitor of the school district acknowledged service of the subpoena issued by Hazard & Co. within the 90 days referred to, sufficient notice of the pendency of the suit was imparted to the school district. This contention cannot prevail. The statute requires a notice of the pendency of the action to be filed with the financial officer of the school district. This is a special and distinct statutory requirement. The service of a subpoena on the

But I do not understand that any adjudicated case has gone so far as to hold or imply that any claim of lien can be enforced unless suit is brought on the claim and notice of pendency of the suit, filed pursuant to the fourth section of the act within 90 days from the filing of the notice of claim of lien, unless some other claimant has, within that period, brought suit and made such claimant a party, and filed a notice of the pendency of suit which names such party. I under stand the adjudicated cases to go no further than to hold that when any claimant brings suit making other claimants defendants, and files a notice of pendency of such suit naming in the notice such other defendant claimants, such other claimants, who are thus brought in to assert their claims by way of answer, may be deemed to have commenced an action at the time they were thus made defendants, and hence the period of 90 days will no longer run against such parties defendant, and they may be excused from filing independent bills to enforce their liens, and

also excused from filing independent notices of the pendency of a suit in which the valid ity of their claims is to be determined. The provisions of section 4 are entirely plain to

the effect that no lien shall be binding unless an action be commenced within 90 days from the filing of the notice of claim of lien, and a notice of pendency of the action be filed, within that period, on the financial officer. The provisions of sections 7 and 8, authorizing claims to be asserted and heard by way of answer to a bill filed by another claimant, may excuse the necessity of independent actions and independent notices of the pendency of actions, but no provision of the act dispenses with the requirements of section 4, to the effect that the lien shall terminate in 90 days from the time the claim of lien is filed, unless within such 90 days action in some form be brought to enforce the lien, and notice of the pendency of the action in some form be given to the financial officer. With these principles in view it becomes necessary to consider each claim separately.

Claim of Horace C. Hazard & Co. This claim has been already considered touching the features in which it differs from all other claims. Another fatal objec

district, or the acknowledgment of service by its solicitor, apprises the district of the suit, but does not necessarily apprise the financial officer, who is charged with the duty of keeping a lien docket, of the pendency

of the suit.

Claims of James J. Davidson. Davidson has two claims; one for bricks supplied to the contractor, the other for sand Notices of supplied to a subcontractor. claims of lien were first filed with the president of the board and with the district clerk; the former, March 23, 1908, and the latter, March 24, 1908. July 7, 1908, these notices were refiled by filing them with the president and with the custodian. As already stated, claimant Horner brought suit August 6, 1908, and filed a notice of the pendency of his suit with the custodian August 12, 1908. In the Horner suit Davidson was made defendant, and the bill specifically set forth that Davidson claimed two liens by reason of notices of claims of liens filed as above set forth. The notice of suit filed by claimant Horner also named Davidson as one of the defendants. To this bill of Horner Davidson filed an answer, in which he alleged that by virtue of the notices referred to in the bill he claimed a lien to the amount nam

in the National Fire Proofing Case, already | pendency of the action to be filed with the referred to, Davidson was not required to bring a separate suit in his own behalf, when brought into court in the manner stated in the Horner suit, and was not required to file with the financial officer a separate notice of the pendency of his action. The Davidson liens must, in consequence, be allowed. On August 4, 1908, Davidson refiled similar notices of claims of liens on all the officers of the school district, and on October 2, 1908, filed an independent suit based on all the filings herein referred to. This was, however, both unnecessary and harmless.

Claim of Thomas P. Ward. This claim was filed December 7, 1908. This was subsequent to the date when suit was brought by Horner, and when notice of pendency of suit was filed by him. No notice of pendency of suit has at any time been filed by Ward, and no notice of pendency of any suit in which Ward is named or is in any way referred to has at any time been Action by John N. Chambers against the filed. This is fatal to the Ward claim. The Consolidated Gas, Electric Light & Power statute distinctly requires a notice of the Company and others. Judgment for plaintiff •For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes 75 A.-16

except as to defendant Maryland Telephone | also said that was the proper place for the Company, and the other defendants appeal. | plaintiff to go to get the arm the way he Reversed without awarding a new trial. wanted it, to adjust it so as to get the bolts Argued befroe BOYD, C. J., and BRIS-in, and that there was no other position the COE, PEARCE, BURKE, and THOMAS, JJ. plaintiff could have taken to do that work. Vernon Cook, Walter L. Clark, and William The testimony tends to show that the crossL. Marbury, for appellants. Robert E. Lee arms are 10 feet long, and 3 by 41⁄2 inches and Thomas G. Hayes, for appellee. thick, and that the one that broke had the "dry rot" on the inside. The plaintiff was very badly injured by the fall.

BOYD, C. J. This suit was instituted by the appellee against the Consolidated Gas, Electric Light & Power Company, Baltimore Electric Company of Baltimore City, and the Maryland Telephone Company. At the end of the plaintiff's case, a verdict was rendered in favor of the telephone company, and the case proceeded against the other two companies, resulting in a verdict in favor of the plaintiff against them. We will speak of the first named as the "Consolidated Company," of the second as the "Electric Company," and of the other as the "Telephone Company."

The two companies offered separate prayers. The Electric Company has abandoned its exceptions, excepting those to the rejection of its first, second, third, and fourth prayers, and to overruling its special exception to the plaintiff's first prayer, which was granted. Those prayers of that company were intended to take the case from the jury, and we will first consider them. It will be borne in mind that the plaintiff was an employé of the Electric Company, and he went upon the pole to do certain work for that company. The question presented by those prayers is whether the plaintiff is entitled to recover from his employer, the Electric Company, for injuries sustained by reason of the cross-arm of the Consolidated Company being defective and breaking under his weight. The ground relied on in the decla

is "that the rottenness of said cross-arm was unknown and not obvious to the plaintiff, because the paint on said cross-arm concealed from the plaintiff the said rottenness; that it was the duty of said defendants to said plaintiff, when performing his duties as lineman on said pole, by the exercise of ordinary care to have discovered the rottenness of said cross-arm and removed the same, or warned the said plaintiff of the rottenness of said cross-arm. This the defendants negligently and carelessly failed to do," etc.

There was a pole about 60 feet high on the corner of Forest avenue and Ware alley, in Baltimore city, which was owned by the Telephone Company, and which was used by the three companies, although the record does not accurately show what arrangement there was between them. There were five cross-ration for a recovery against the defendants arms of the Telephone Company at the top, then three of the Electric Company, and one of the Consolidated Company. The latter was about 35 feet from the ground. On May 21, 1907, the plaintiff and Frank B. Ford, who were linemen of the Electric Company, were ordered to put three cross-arms on this pole, which we understand to be the three mentioned above. The plaintiff said that his duties as lineman were to climb poles, put on cross-arms, string wires, and hang transformers, and Ford spoke also of putting up poles. They had put two of the cross- One peculiarity about the case is the fact arms on, and were about to put the third on, that the plaintiff as the lineman of the Elecwhen the plaintiff, to quote his testimony, tric Company was injured by a cross-arm "started to get in position to do the work, which belonged to the Consolidated Company, and stepped on this cross-arm, which broke, over which the Electric Company had no and he fell to the ground." The cross-arm control. The alleged violation of duty by the which broke belonged to the Consolidated two companies is therefore based on two sep Company, and was the lowest one on the pole. arate grounds-the one sending its employé The plaintiff testified that before he stepped into a dangerous place without warning him, on it he looked at it and it appeared to be or previously examining it, and the other sound; that he could not have done the work maintaining a dangerous place. There is without standing on the arm, because it was nothing to show that the Electric Company in the way; that he could not have stood on had the right to remove the defective crossone of the steps (which consisted of iron arm, and therefore its responsibility, if any, spikes placed in the pole about 18 inches must rest on the failure to discover the deapart), because they did not come up that far, fect and warn the plaintiff of it. It is not and were not close enough to stand on. Ford contended that it did make an examination testified that he told plaintiff to get around or test of the cross-arm, or did warn the the pole, so he (Ford) could set the bolts and plaintiff that it was defective. The precise put the nuts on, and, as plaintiff got down question, therefore, that presents itself in limfrom the position he was in, he put his foot ine is whether it was the duty of that comon the arm about 18 inches from the pole, pany to have inspected the cross-arm of the and over the top of the brace, and "almost other company before sending the plaintiff before I knew anything, Mr. Chambers left upon the pole. The general use of electricity