Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
[54 NJSuper Page 55] Plaintiff appeals from a judgment of no cause of action entered in defendants' favor by the Cumberland County District Court in a mechanics' lien
suit, for failure to comply with N.J.S. 2 A:44-99 and 101 of the Mechanics' Lien Act. The precise question involved is this: Where a materialman, who sold lumber to a contractor who used it to alter a house for the owners under an unrecorded contract, timely filed his mechanics' notice of intention and mechanics' lien claim and later commenced suit against such owners, but the commencement of the suit was not endorsed on the lien claim as required by N.J.S. 2 A:44-99 and 101, is such defect fatal to the action, so that the claim must be discharged by order of the court as specified in the statute, or is it merely procedural, so that notation of the commencement of the suit may in the discretion of the court be entered on the lien claim nunc pro tunc ?
Defendants Hruza contracted with one Wilford, a contractor, to make certain alterations and repairs on their home at Laurel Lake, Cumberland County. The building contract was not recorded. On August 1, 1956 plaintiff, prior to furnishing any materials to Wilford, filed his mechanics' notice of intention in the Cumberland County Clerk's Office. Thereafter, between August 16 and December 22, 1956, he supplied materials for the job in the amount of $98.59. Plaintiff filed his mechanics' lien claim on March 27, 1957, within four months after the date of the last materials furnished, N.J.S. 2 A:44-91, the claim being in the form required by N.J.S. 2 A:44-92. The claim was duly entered by the county clerk in his lien docket, pursuant to N.J.S. 2 A:44-93.
On March 29, 1957, and within four months of the date of last furnishing materials (N.J.S. 2 A:44-98), plaintiff filed a two-count complaint in the Cumberland County District Court (N.J.S. 2 A:44-97), demanding judgment (1) against the Hruzas on the lien claim, and (2) against them as well as Wilford, as their agent. No certificate of the commencement of this action was obtained from the district court clerk (who also was county clerk), and the lien claim filed in the county clerk's office was, accordingly, not endorsed after the commencement of the action as required
by N.J.S. 2 A:44-99. The district court judge dismissed the mechanics' lien action for plaintiff's failure to file the required certificate, and entered the no cause judgment under appeal.
N.J.S. 2 A:44-99 provides:
"The county clerk shall, upon the commencement of the civil action, commenced in the county court or, upon the presentation of the certificate prescribed in section 2 A:44-101 of this title, if commenced in the superior or county district court, indorse on the lien claim the time of the commencement of the action.
If no such indorsement is made within 4 months or within the extended period provided by section 2 A:44-98 of this title, from the last date of the labor performed or materials furnished , or if such claimant shall fail to issue the summons in the action within 5 days after the filing of the complaint or to prosecute his claim diligently within 1 year from the commencement of the action or such further time as the court may by order direct, the lien shall be discharged by an order signed by the superior court or the county court." (Italics ours.)
N.J.S. 2 A:44-101 directs that
"The plaintiff in an action brought in the superior court or a county district court on a lien claim, shall obtain from the clerk of such court a certificate to the effect that an action has been commenced in that court on such lien claim, specifying the court wherein the action is brought, and the date when such action was so commenced. The certificate shall be presented to the proper county clerk within 5 days after the commencement of the action, who shall indorse on the lien claim that an action thereon has been commenced, specifying the court where, and the date when such action was commenced."
Our Mechanics' Lien Act, N.J.S. 2 A:44-64 et seq. traces back to the beginning of the 19th Century. It was amended and supplemented periodically until 1898, when "An Act to secure to mechanics and others payment for their labor and materials in erecting any building (Revision of one thousand eight hundred and ninety-eight)," L. 1898, c. 226, was passed. Chapter 227 of the laws of that year repealed sundry acts relative to mechanics' liens still on the statute ...