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Zawaski v. Cole Construction Corp.

Decided: January 15, 1958.

MICHAEL M. ZAWASKI, PLAINTIFF-APPELLANT,
v.
COLE CONSTRUCTION CORPORATION, A CORPORATION OF NEW JERSEY, BUILDER, DEFENDANT, AND JOHN M. MARTIN AND JESSICA B. MARTIN, HIS WIFE, OWNERS, DEFENDANTS-RESPONDENTS



Clapp, Jayne and Schettino. The opinion of the court was delivered by Jayne, J.A.D.

Jayne

The pertinent circumstances and the chronology of their occurrence are disclosed in an acknowledged statement of the facts. A summary of them will adequately reveal the controversial subject matter of the present appeal.

The defendants John M. Martin and his wife, Jessica B. Martin, were the owners of premises situate on West Crescent Avenue in the Borough of Allendale, Bergen County, upon which they desired to have a dwelling erected. To achieve that objective they contractually engaged the Cole Construction Corporation to build the residence. Thereupon the Cole Construction Corporation itself independently employed the plaintiff, Michael M. Zawaski, as a subcontractor to perform the specified carpentry work in the construction of the house.

On June 5, 1956 the plaintiff filed in the office of the Clerk of Bergen County a notice of intention to perform such labor or furnish such materials, or both, in the construction of the building on the designated property.

It is significant to observe that the notice incorporated the following paragraph:

"(c) That any labor and/or materials to be performed or furnished in connection with any building operation upon the said lands under the protection of this Notice will be upon the order of, and at the expense of COLE CONSTRUCTION CORPORATION."

In such circumstances and conditions the construction of the dwelling was undertaken. It progressed until about the middle of August, 1956, when the Cole Construction Corporation abandoned the further performance of its contract and, in consequence, on August 23, 1956 the plaintiff terminated his services. Thus the construction work came to an end.

It was in this exigency of affairs that the defendants Mr. and Mrs. Martin sought to abate their own consequential misfortune. Their expedient, perhaps the most favorable, was to enter into a contract with the plaintiff to complete the carpentry work. This remedial course the Martins adopted on August 31, 1956, and the so-called "trim" work was completed by the plaintiff on September 26, 1956.

The succeeding occurrences are that on January 21, 1957, which in point of time is obviously within a period of four months from September 26, 1956, the date on which the plaintiff fully completed his services pursuant to the terms of the contract with the Martins, the plaintiff caused a mechanic's lien claim to be filed in the office of the Bergen County Clerk designed to encumber the Martin property. The present action thereon was instituted on January 23, 1957 in the Bergen County Court against the Cole Corporation and against Mr. and Mrs. Martin. A default judgment, general in character, was entered on June 18, 1957 in favor of the plaintiff against the corporate defendant.

Next ensued the application addressed to the County Court by the plaintiff on June 21, 1957 for an order authorizing an amendment of paragraph (c) of the notice of intention filed on June 5, 1956, to encircle therein also the defendants Mr. and Mrs. Martin, as persons at whose expense his labor was to be performed and against whom the materials furnished were to be charged.

Manifestly the plaintiff's belated desire for the amendment was to acquire a lien upon the premises for the indebtedness due him from the Cole Construction Corporation; obviously, too, a perception born of hindsight. Our information is that although tendered, the plaintiff declines to accept the balance of $101.80 owing to him by the Martins under the contract made by them with him on August 31, 1956.

The opportunity to amend the notice in the notably vital respect requested by the plaintiff was not accorded to him by the court, and the ...


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