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Rigberg v. Narduc Development Corp.

Decided: November 27, 1957.

WILLIAM RIGBERG, WILLIAM E. ROHLOFF AND BETTER ELECTRIC CO., A CORPORATION, PLAINTIFFS,
v.
NARDUC DEVELOPMENT CORP., DEFENDANT



Haneman, J.s.c.

Haneman

This matter concerns itself with whether William Rigberg and William E. Rohloff are entitled to a mechanic's lien and thereby a preference in payment by the receiver for the Narduc Development Corporation. The facts in connection herewith are as follows:

Narduc Development Corp., a corporation of the State of New Jersey, hereinafter referred to as Narduc, owned two non-contiguous tracts of land, one situate in Delaware Township, Camden County, New Jersey, and the other in West Berlin, Camden County, New Jersey. In 1954 Narduc determined to subdivide these two tracts and to construct a number of houses on each tract. The housing development was to be carried on simultaneously at both locations as one project, even though the two tracts were some miles apart. In furtherance of this plan, Narduc entered into an oral contract

with William Rigberg (hereinafter referred to as Rigberg), under which Rigberg was to furnish all of the plumbing and heating materials required for each of the said houses. Narduc delivered to Rigberg a list of materials to be furnished for each house, which materials were to be delivered as separate items as directed by Narduc.

Rigberg filed a mechanic's notice of intention to furnish materials for the construction of each of the several houses in the Narduc developments. N.J.S. 2 A:44-71. Each such notice described the separate lot or curtilage of land upon which a building was to be erected. N.J.S. 2 A:44-70; N.J.S. 2 A:44-72.

Thereafter Rigberg delivered materials to the several individual locations as directed by Narduc. Rigberg kept a running account showing the monthly items of materials furnished, with the prices therefor, and the monthly credits for payments. The balance of this account showed the aggregate net indebtedness due for the furnishing of materials to either or both tracts.

On September 16, 1955, on application duly made in accordance with the statute, Narduc was adjudicated insolvent and Josiah E. DuBois, Jr. was appointed as its receiver. The order adjudicating the insolvency of Narduc incorporated, inter alia , an injunction restraining the creditors from undertaking any legal proceedings to enforce their liens. By virtue thereof, Rigberg was prevented from filing a lien claim and perfecting his lien. N.J.S. 2 A:44-91 et seq. The realty of the corporation was sold by the receiver, free of liens, which were directed to be attached to the proceeds of each sale.

Rigberg claims a lien on the proceeds of the sale of eight of the houses covered by his notices of intention, for which no payment was received, alleging that he furnished materials and made deliveries on two occasions within four months prior to the injunction and subsequent to May 16, 1955. He bottoms this contention upon the assertion that he had a single contract for the furnishing of all of the plumbing and heating materials required by Narduc for all of the

houses which Narduc would construct on both tracts, and that delivery under such contract to any one of said houses within four months prior to September 16, 1955 is sufficient to entitle him to a lien in the amount of the unpaid balance due for materials furnished to all eight houses, since he was prevented from filing his lien claim by the action of this court.

The deliveries to which he refers were made on August 17, 1955 and May 19, 1955, respectively. The delivery on May 19, 1955 consisted of five aerostats, or air controls for heating units, for which Narduc was charged $114.75. The explanation for this delivery is that the aerostats as originally specified in Narduc's list of materials contained "short elements" which, it was discovered, did not accomplish that for which they were designed. On that day Narduc ordered and had delivered to it other aerostats produced by the same manufacturer, but containing "long elements" which were better suited to its purpose.

The question is, therefore, whether this delivery constituted a furnishing of material under the contract for which the ...


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