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Elliot-Farber Roofing & Siding Supply Co. v. Saitta

Decided: June 27, 1963.

ELLIOT-FARBER ROOFING & SIDING SUPPLY CO., A CORPORATION OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ANTHONY SAITTA, TRADING AS CROWN CONSTRUCTION CO., BUILDER, DEFENDANT; AND STEVEN WISNIEWSKI AND HELEN WISNIEWSKI, OWNERS, DEFENDANTS-APPELLANTS



Goldmann, Freund and Foley. The opinion of the court was delivered by Foley, J.A.D.

Foley

Defendants Steven Wisniewski and Helen Wisniewski appeal from a judgment in the amount of $792.84 and costs, entered in the Middlesex County District Court.

The matter is before us on an agreed statement in lieu of record. R.R. 1:6-2. The facts are not in dispute. On August 15, 1961 defendants entered into a written contract with Anthony Saitta, trading as Crown Construction Co., by which Saitta was to supply labor and materials for the alteration of the Wisniewski residence in East Brunswick, Middlesex County, for a total price of $2,550, payable in installments. The contract was not filed in the office of the Middlesex County Clerk at any time. See N.J.S. 2A:44-75. Defendants made installment payments to Saitta totalling $2,282.28, but it is not clear whether these payments were for work done and materials provided, or merely payments in advance. The last two of such payments were made on September 7, 1961 ($690) and September 21, 1961 ($92.28).

On September 5, 1961 plaintiff, a materialman, filed with the Middlesex County Clerk a notice of intention to furnish materials to Saitta, pursuant to N.J.S. 2A:44-71. Between that date and September 21, 1961 plaintiff furnished Saitta

with materials having a total value of $742.69. On September 8, 1961 plaintiff sent defendants by registered mail a notice of the filing of the notice of intention. See N.J.S. 2A:44-71, supra. The letter was received by the postmaster of Fair Lawn, New Jersey, on September 9 and forwarded that day to the defendants at their residence. A return receipt was signed by Steven Wisniewski which indicated receipt of the notice on September 11. Plaintiff filed a lien claim on the Wisniewski property on October 16, 1961 and commenced suit on October 17.

The issue raised by this appeal is extremely narrow, the question presented dealing entirely with the construction of N.J.S. 2A:44-71. That statute in pertinent part provides as follows:

"Except as hereinafter in this section and in section 2A:44-75 of this title provided, no one shall be entitled to a lien under the provisions of this article for any labor performed or materials furnished prior to the filing, in the office of the proper county clerk, of a mechanic's notice of intention to perform such labor or furnish such materials.

Notice, in writing, of the filing of any such notice of intention shall be given within 5 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." (Emphasis added.)

The provision for written notice to the homeowner of the filing of a notice of intention was enacted by L. 1957, c. 232, p. 784, ยง 1. The obvious purpose of the amendment was to provide a means by which the owner would be alerted to the notice of intention, and the legal implications and consequences of same. See Apex Roofing Supply Co. v. H.W. Elliot Co. , 52 N.J. Super. 522, 525 (Cty. Ct. 1958); Apex Roofing Supply Co. v. Howell , 59 N.J. Super. 462, 467 (App. Div. 1960).

Simply put, the question is this. Does the obligation of the owner to the materialman under the statute commence on the date of the mailing of the notice, or does it run from the date the notice is actually received by the owner? The

trial court held that the date of mailing ...


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