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Stavola Contracting Co. v. Dario Construction Co.

Decided: December 15, 1967.

STAVOLA CONTRACTING COMPANY, INC., A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF,
v.
DARIO CONSTRUCTION CO., INC., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT



Lane, J.s.c.

Lane

[98 NJSuper Page 329] This matter is before the court on an application by Mach Lumber Co., Inc. (Mach), a creditor of the defendant (Dario), "to permit filing of mechanic's liens and/or extension of time to do so." Mach seeks leave to file a lien claim pursuant to a notice of intention after the expiration of four months from the date of the last delivery of materials, to establish a claim of lien upon premises owned by Alphonse J. Dalton and Helen P. Dalton (Dalton).

Dalton was given notice by order to show cause and has raised no objection to the jurisdiction of this court to hear the application. Since the application concerns the indebtedness of an insolvent corporation, this court has jurisdiction to hear the matter. Riverside Apartment Corp. v. Capital Const. Co., 107 N.J. Eq. 405 (Ch. 1930), affirmed o.b. 110 N.J. Eq. 67 (E. & A. 1931).

Between April 28 and June 23, 1967 Mach sold and delivered materials having a value of $3,545.40 to Dario, which was constructing a dwelling on the premises of Dalton. Dario has paid Mach $1,000. Mach seeks a mechanic's lien against the Dalton property for the balance of $2,545.40. There is no allegation that Dario at any time owned the premises involved. On April 26, 1967 Mach filed a mechanic's notice of intention with the clerk of Monmouth County. Under N.J.S. 2A:44-91 Mach should have filed its lien claim with the county clerk on or before October 23, 1967, four months from the date of the last delivery. It did not do so. The application to permit the filing of the lien claim was presented to this court on November 10, 1967.

By an order of this court dated September 28, 1967 in these proceedings, the defendant was declared insolvent and a statutory receiver appointed. That order provided, inter alia, "that all persons, especially the creditors and those claiming liens against the assets of the defendant corporation shall be and they are hereby restrained from bringing any action or proceedings at law or otherwise against the assets of said defendant corporation and from taking any further proceedings in any action or proceeding heretofore commenced; * * *."

The issue is whether under the facts of this case this court may extend the time within which a lien claim must be filed under N.J.S. 2A:44-91.

In J.R. Christ Constr. Co. v. Willete Assocs., 47 N.J. 473 (1966), the Supreme Court stated that mechanics' lien statutes are remedial:

"Mechanics' lien statutes are remedial and are designed to guarantee effective security to those who furnish labor or materials used to enhance the value of the property of others, and, where the terms of the statute reasonably permit, the law should be construed to effect this remedial purpose." (at p. 477)

Although the Mechanics' Lien Law is remedial legislation, it is in derogation of common law, and liens arising under it are exclusively statutory in origin. Smith & Richards Lumber Co. v. Hurley, 116 N.J.L. 429 (E. & A. 1936).

In Friedman v. Stein, 4 N.J. 34 (1950), Justice Heher stated for the Court:

"The mechanic's and the materialman's liens had their genesis in the civil law. They are unknown to the common law; and they have had no recognition in equity except as prescribed by statute." (at p. 40)

In Columbia Lumber & Millwork Co., Inc. v. DeStefano, 12 N.J. 117 (1953), a distinction was drawn between the procedural aspects of commencing suit under a lien claim and the timely filing of the notice ...


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