Goldmann, Conford and Freund. The opinion of the court was delivered by Freund, J.A.D.
[55 NJSuper Page 309] Defendants, mechanics' lien subcontractors, appeal from a summary judgment entered in the Law Division of the Superior Court in favor of the plaintiff on the first count of the complaint and dismissing their counterclaim. Plaintiff is the owner of the premises upon which the defendants seek to impose a lien. The complaint seeks, in its first count, to discharge from the records a mechanics' notice of intention filed by the defendants, and, in the second count, to recover damages for the slander of
plaintiff's title. Plaintiff desires to lease the premises, but the prospective lessee demands a discharge of the lien. The appeal comes before us on an agreed statement approved by the trial judge, R.R. 1:6-3, together with the pleadings and motion papers.
Plaintiff entered into an agreement with Martin Novich, as the general contractor, for the performance of certain construction improvements. Novich hired the defendants as subcontractors to lay an asphalt surface upon plaintiff's property. On July 21, 1958 defendants commenced the work. On July 28, 1958 they filed a notice of intention with the clerk of Essex County. Relying upon N.J.S. 2 A:44-71, plaintiff seeks to have this notice of intention discharged on the ground that no notice in writing was given to the plaintiff, either personally or by registered mail, of the filing of the notice of intention.
The answer filed by the defendants admits that their notice of intention was filed on July 28, 1958, but denies that plaintiff was not given written notice of the filing of the notice of intention.
Notice was given by the plaintiff of a motion for summary judgment on the first count of the complaint and for the dismissal of defendants' counterclaim.
The pertinent part of the statute requiring written notice is as follows:
"Notice, in writing, of the filing of any such notice of intention shall be given within five days of such filing to the owner of the premises, of the land described therein, personally or by registered mail, to the last known address, and unless such notice to the said owner be so given, the filing of the said notice of intention shall have no force or effect." N.J.S. 2 A:44-71.
Defendants submitted the following affidavit:
"Dominick Neri, being duly sworn according to law, upon his oath, deposes and says:
1. I am one of the partners of Dun-Rite Driveway Co., the defendant in the above entitled action.
2. Notice in writing of the filing of the notice of intention in the above matter was given to the owner of the premises involved located at 210 North Clifford Street, Newark, New Jersey; said notice was given within 5 ...