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Chesebro-Whitman Co. v. Edenboro Apartments Inc.

February 8, 1965


Conford, Kilkenny and Lewis. The opinion of the court was delivered by Conford, S.j.a.d.


Plaintiff rented steel scaffolding to a subcontractor of the general contractor in connection with the erection of an apartment house in Orange for the defendant corporation, owner of the property. The general construction contract was duly filed with the county clerk of Essex County, thereby precluding mechanics' liens except for the general contractor. N.J.S. 2A:44-75. Plaintiff, being unpaid for its rental charge, duly filed and served upon defendant a stop notice for the amount due to it. N.J.S. 2A:44-77 et seq. Upon refusal of defendant to make payment, plaintiff brought this action to enforce the stop notice provisions of the statute.

On motion by defendant, Judge Matthews dismissed the complaint in the Superior Court, Law Division, on the sole ground that, not being the legal subject of a mechanics' lien claim, plaintiff's demand could no more ground a stop notice right of action under the applicable interrelated statutes. Plaintiff stipulated in the trial court that the nature of its service to the construction project was such that its claim was not properly lienable under the Mechanics' Lien Law even had the contract not been filed. Its contention was, however, that the statute encompasses broader coverage for stop notices than for mechanics' liens, and, properly construed, brings its claim within the stop notice protection.

On the argument of the appeal before this court we extended the scope of investigation to the question of the lienability of plaintiff's services, being concerned over what then seemed to us a debatable justification for the trial stipulation against lienability and the consequent possibility that decision herein might be premised upon an erroneous assumption as to the important mechanics' lien law question collaterally involved. Thus we have had the benefit of supplemental briefs on the issue of lienability of the claim. It is also to be noted that plaintiff has conceded on this appeal that it delivered the scaffolding materials to the job site and removed them to its warehouse after the building was erected. The scaffold was presumably erected and dismantled by the contractor or subcontractor.

The materials were presumably usable by plaintiff for other jobs after they had served their purpose for that here in question. The rental claim was consequently solely for the temporary use of the materials during construction of this building.


We direct our attention first to the issue determined against plaintiff at trial level -- whether the stop notice statutory provisions contemplate broader coverage than those pertaining to the lien. The question has apparently not been explicitly decided in any reported decision in this State.

The stop notice provision applies in favor of a person who has furnished a contractor or subcontractor materials "for use in or about the erection, construction," etc., of a building or of laborers "employed" by a contractor or subcontractor "in erecting, constructing," etc., any building. N.J.S. 2A:44-77 (emphasis added). Plaintiff's contention here is that it has supplied materials rather than labor.

Mechanics' liens are, in general, created by the statute "for labor performed or materials furnished for the erection, construction" etc., of the building. N.J.S. 2A:44-66(a) (emphasis added). But the same section, in allowing liens for erecting docks, wharfs, etc. (c); for improving land by drainage, dredging, etc. (d); for furnishing or repairing fixed machinery in mills and factories (e); for digging or drilling wells (f); or for seeding or planting shrubs, trees or plants (g), does in each such case use the language, "in or about," as in the stop notice provision noted above, or similar expressions.

The whole emphasis of plaintiff's argument is that the prepositional language "in or about," in the stop notice section, connotes a legislative design for broader coverage than the assertedly more restrictive "for," as found in the general mechanics' lien provision. From this premise plaintiff infers a legislative intent to allow a stop notice claim for rental of

equipment necessary to the erection or construction of a building even if a mechanics' lien could not be based thereupon. But the history of this interrelated statutory scheme and of cognate legislation is too laden with indicia of a contrary legislative intent to permit of any latter day de novo exegesis of the present statutory language -- even were any attempt to make one persuasive of the result plaintiff espouses -- which of itself is dubious.

Full discussion of the history of mechanics' lien legislation in this State may be found in our cases. See, e.g., McNab & Harlin Mfg. Co. v. Paterson Building Co., 71 N.J. Eq. 133, 140-142 (Ch. 1906), affirmed 72 N.J. Eq. 929 (E. & A. 1907); Arrow Builders Supply Corp. v. Hudson Terrace Apts., Inc., 15 N.J. 418, 420-425 (1954), rehearing denied 16 N.J. 47 (1954). Certain aspects thereof are helpful in the present connection.

Mechanics' lien legislation had been enacted in Maryland and Pennsylvania before the first statute appeared in New Jersey in 1820. L. 1820, p. 124; McNab, supra (71 N.J. Eq., at p. 138). The mechanics' lien concept is purely statutory, there being no common-law background. A critical need existed for new construction, and the statutes were enacted as a policy measure to encourage artisans in the building trades. But Pennsylvania's experience had pointed up what the New Jersey legislators saw as a serious defect. While such legislation would encourage artisans, it might tend to discourage owners, because their property could be subjected to liens by remote and possibly unforeseeable claimants. For this reason the 1820 New Jersey statute had two provisions; the first afforded the basic lien remedy to mechanics and materialmen; the second was a contract-filing provision which enabled the owner to restrict the liability of his property to potential liens only for the one with whom he was in privity, the prime contractor. McNab, supra (71 N.J. Eq., at p. 141).

Although the filing provision afforded protection to property owners, its collateral effect was to cut off the liens of remote laborers and materialmen, relegating them to their

common-law remedies against prime contractors or subcontractors who were often judgment-proof. In 1835 the first stop notice provision appeared, L. 1835, p. 148, giving a statutory remedy to any unpaid "journeyman or laborer." Elmer's Digest (1838), p. 339. There was no mention of materialmen. Nor did the stop notice provision refer to the filing section; so the courts initially construed the remedies as independent, and, in the absence of filing, cumulative. McNab, supra (71 N.J. Eq., at p. 142).

In subsequent re-enactments and amendments, however, the stop notice remedy was extended to materialmen, and the lien, the filing and the stop notice provisions were arranged consecutively. See L. 1853, p. 437, Nixon's Digest (2d ed. 1855), p. 487. This arrangement, and the use of the words "such building" in the stop notice section (section 3), led the courts to conclude that a materialman could invoke a stop notice only if the contract for the building were on file, as provided for in section 2. Summerman v. Knowles, 33 N.J.L. 202, 204 (Sup. Ct. 1868). (There remained some confusion as to laborers' remedies (id., at p. 204), but this was later resolved in favor of construction parallel to that for materialmen, see Weaver v. Atlantic Roofing Co., 57 N.J. Eq. 547, 550 (Ch. 1898).) The present ...

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