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APEX Roofing Supply Co. v. Kersner

Decided: December 1, 1958.

APEX ROOFING SUPPLY COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
HYMAN KERSNER, TRADING AS JERSEY HOMES, LUILDER, DEFENDANT, AND HUBERT WEST AND PATRICIA WEST, OWNERS, DEFENDANTS-RESPONDENTS



Schettino, Hall and Gaulkin.

Per Curiam

This is a mechanic's lien action instituted in the Hudson County District Court, in which plaintiff sought a general judgment of $292.94 against Hyman Kersner, trading as Jersey Homes, the general contractor, and a special judgment against the premises of Mr. and Mrs. West upon which Kersner had made repairs. The trial judge refused to enter judgment against the lands of the Wests, and entered judgment in their favor instead. From that judgment plaintiff appeals.

It is not disputed that plaintiff furnished $292.94 of roofing material to the general contractor which the latter used in making the repairs, and that prior to the delivery of the material plaintiff filed its notice of intention to claim a mechanic's lien. In his conclusions of law filed pursuant to R.R. 7:16-3, the trial judge said that the only reason he refused the special judgment is because in the notice of

intention "the only party designated as the party to be charged with the expense was the General Contractor. The owner, West, was not included therein as the party to be charged." The trial judge was of the opinion that he was compelled to so hold by the case of Zawaski v. Cole Construction Corp. , 48 N.J. Super. 390 (App. Div. 1958). In this the trial judge erred.

The notice of intention was in the usual form. The portions pertinent to this appeal were filled in as follows:

"Notice Is Given

(a) That Hubert & Patricia West is the name of one who, within ten days prior to the filing of this notice, is or has been the owner of record of an estate in the lands hereinafter referred to, to which the lien under the aforesaid act may attach;

(b) That the lands to which any lien protected by this notice can or may attach are identified by the following description thereof, viz. --

90 Vroom Street, Jersey City, N.J. more fully described in deed book 2678 page 543.

(c) That any labor and/or materials to be performed or furnished in connection with any building operation upon the above described lands under the protection of this notice will be upon the order of and at the expense of Jersey Homes."

That notice was sufficient. It was not necessary to name the Wests under paragraph (c) to entitle plaintiff to a special judgment against their lands, since plaintiff was a subcontractor who had no contractual relation with the Wests and the materials were not to be furnished at their order or expense. N.J.S. 2 A:44-72; Passaic-Bergen Lumber Co. v. Currie , 111 N.J.L. 63 (Sup. Ct. 1933).

The Zawaski case is not to the contrary. In that case Zawaski filed a proper notice of intention, on June 5, 1956, showing that he was doing work and furnishing material as a carpenter sub-contractor to Cole Construction Company (named as the one to be charged in paragraph (c) of the notice of intention) which, as general contractor, was building upon lands of Mr. and Mrs. Martin. Cole Construction Company abandoned the work, and therefore on August 25, ...


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