On appeal from the Supreme Court.
For the plaintiff-appellant, Aaron Heller.
For the defendant-respondent, William Newcorn.
The opinion of the court was delivered by
BROGAN, CHIEF JUSTICE. This is an appeal from a judgment of the Passaic County Circuit Court in favor of the defendant. The case was submitted to the trial court, without a jury, upon a written stipulation of the facts and involves a construction of the Municipal Mechanics' Lien act (sections 5 and 7, chapter 280, Pamph. L. 1918) entitled "An act to secure the payment of laborers, mechanics, &c., employed upon or furnishing materials towards the performance of any work in cities, towns, townships and other municipalities in this state."
The facts are that the defendant, city of Plainfield, entered into a contract on November 7th, 1930, with the Paino Construction Corporation for the construction of a storm sewer in that city and that during the months of December and January following, the contractor entered into contracts with the assignor of the plaintiff to perform certain work as a subcontractor. On April 23d, 1931, the plaintiff (subcontractor) served a notice on the city clerk of Plainfield, claiming $5,275.42 for labor and material furnished the contractor. The lien was against money due or to become due to the contractor. The notice was entered in the lien book of the municipality and the city clerk informed the treasurer and the engineer of the municipality that the stop-notice had been filed. The contractor was likewise notified. The contractor countered with a notice to the municipal authorities that it
disputed the lien claim and, under the provisions of section 5 of the statute, supra, tendered a bond of the Union Indemnity Company in double the amount of the claim filed. There was an informality in the first bond tendered and on May 4th, 1931, the contractor offered a new bond.
The fifth section of the statute, supra, reads as follows:
"5. The lien shall attach from the time of the filing thereof to the extent of the liability of the contractor or subcontractor, as the case may be, for the claim preferred upon any funds which may be due or to grow due to the said contractor from the municipality under the contract against which the lien is filed. Provided, however, that the funds due or to grow due to the said contractor from said city, town, township or other municipality may be released and paid to the said contractor by the financial officer of said city, town, township or other municipality upon the filing with said financial officer of a bond in double the sum of all claims filed under the provisions of this act against the said contract or the funds due or to grow due thereunder conditioned for the payment of such sum or sums as may be decreed to be due under any such claims, which bond shall be approved as to form by the chief law officer of such municipality and as to sufficiency by the financial officer with whom it is filed."
It will be observed that the statute requires that such bond shall be approved as to form by the chief law officer of the municipality and as to sufficiency by the financial officer with whom it is filed. The former approved the bond; the latter did not. It might be more accurate to say that the financial officer apparently had had no opportunity to do so since in a letter, written May 6th, 1931, by the city clerk to the city treasurer, the former advised that the contractor filed a bond "in double the amount of the stop-notice, approved by the corporation counsel, which bond I understand offsets the stop-notice, and on which basis I (the city clerk) signed a check for the Paino Corporation." Thereafter, and on June 1st, 1931, the municipal defendant made "another payment" to the contractor in the sum of $28,912.09. At this point we observe that it is not clear whether this is the check which
the city clerk, in his letter of May 6th, says he signed for the contractor, or whether it was a further payment. The ...