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Solondz Bros. Lumber Co. v. Piperato

Decided: November 30, 1953.

SOLONDZ BROS. LUMBER CO., A CORPORATION, PLAINTIFF-APPELLANT,
v.
JOSEPH PIPERATO, DEFENDANT, AND WILLIAM YAROTSKY AND CATHERINE YAROTSKY, DEFENDANTS-RESPONDENTS



Eastwood, Jayne and Francis. The opinion of the court was delivered by Eastwood, S.j.a.d.

Eastwood

This appeal concerns itself with the construction of sections N.J.S. 2 A:44-75, 77, 81 and 85, of the Mechanics' Lien Law.

Among the questions posed there are only three that require our determination, to wit: (1) Did the plaintiff's stop notice set forth and specify the amount due and demanded as nearly as possible?; (2) Did the two payments aggregating $1,100 made by the owners to the contractor constitute advance payments for which the owners were not entitled to any credit in ascertaining the amount of money in their hands at the time of the filing of the stop notice?; and (3) Were the owners allowed a sufficient credit for the cost of completing the construction, consequent upon the abandonment of the work by the contractor?

The trial court, sitting without a jury by consent of the parties, held that the challenged payments aggregating $1,100 were not, under its construction of the statute, advance payments; that the owners were entitled to credit therefor in ascertaining the amount of money in their hands at the time of the filing of the stop notice and that the owners were entitled to a further credit of $750 for the reasonable cost of completing the construction of the dwelling house under the terms of the contract, thus leaving a balance of $150 in the hands of the owners subject to the plaintiff's claim. The plaintiff appealed from the ensuing judgment in its favor for $150 and the defendants-owners filed a cross-appeal from that part of the judgment which allowed them the sum of $750 for the completion of the construction.

The following factual recital will more clearly portray the resulting issues.

The defendants William Yarotsky and Catherine Yarotsky entered into a contract on September 29, 1950 with one Joseph Piperato, whereby the latter agreed to erect a dwelling house for the sum of $15,500, which was to be paid in

installments, the final payment of $2,000 to be made upon the full completion as certified by the architect. The building contract and accompanying specifications were filed in the Union County Clerk's office on October 3, 1950.

The building materials used in the Yarotsky house were purchased by the contractor from the plaintiff, and totalled the sum of $5,109.58, against which Piperato had a credit for payments on account and materials not used in the amount of $2,647.09, leaving a balance due of $2,462.49. In the instant action, Piperato was made a defendant and judgment by default was entered against him in the sum claimed plus interest and costs of suit.

The plaintiff finding itself unable to collect the amount due from the contractor, filed a "stop notice" on March 6, 1952 in the Union County Clerk's Office, directed to the Yarotskys, wherein it was stated that there was due to the plaintiff the sum of $2,462.49 for materials furnished and demanding that the same be retained out of any money due or to become due from the defendants-owners. A copy of the stop notice was, on March 7, 1952, sent by registered mail to the Yarotskys and was received by them on March 15, 1952.

It is clear that the contractor never completed the house. At the time the plaintiff filed its stop notice, the owners had remaining in their hands the sum of only $900 out of the final payment of $2,000.

When it became apparent that the contractor would not complete the house -- in fact, that he had actually abandoned the job -- the owners vacated their other place of residence in November, 1951, and moved into the new house in its unfinished condition. The Yarotskys assert that out of the final $2,000 installment they made payments to the plumber, painter and for other work and materials necessary for a completion of the construction, totalling $1,370.59, which payments they contend were expended in good faith about five months before the plaintiff filed ...


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