Gaulkin, Lewis and Kolovsky. The opinion of the court was delivered by Gaulkin, S.j.a.d.
Plaintiff materialman sued to impress a mechanic's lien upon the property owned by defendant Hellinghausen (hereafter owner) for building material sold to Di Trani for use in repairing the owner's home. The trial court granted the owner's motion for summary judgment on the ground that plaintiff had not served a copy of its notice of intention upon the owner within the time limited by N.J.S. 2A:44-71. Its opinion is reported in 95 N.J. Super. 442 (Law Div. 1967). Plaintiff appeals. We reverse.
This matter is before the court on an agreed statement in lieu of record. R.R. 1:6-2. On July 28, 1965 the owner entered into a contract with Di Trani (contractor) whereby the contractor agreed to furnish and install aluminum siding on the owner's premises for $2,800.00. The owner was to pay $100 upon the execution of the contract, $700 on July 30, 1965, and $2,000 by the execution of a promissory installment note to the National Community Bank. The contract was not filed. See N.J.S. 2A:44-75.
Pursuant to the contract, the owner gave the contractor two checks -- one dated July 30, 1965 in the amount of $100, and the other dated August 2, 1965 in the amount of $700. On August 4, 1965 the owner executed the installment promissory note to the bank.
Between July 30 and September 15, the contractor purchased certain building materials from plaintiff. On July 30, and prior to furnishing any materials to the contractor, plaintiff filed a notice of intention pursuant to N.J.S. 2A:44-71. A copy of the notice was sent to the owner by registered mail on August 4, 1965 and was received by her on August 6, 1965. Thus, the copy of the notice was received by the owner more than 5 days after plaintiff had filed its notice of intention and after the owner had paid the contractor the stipulated consideration.
On December 10, 1965 plaintiff filed a mechanic's lien claim against the building and land of the owner, claiming that $1,106.15 worth of materials supplied by it to the contractor
had not been paid for. Its action was commenced within four months from the date the last materials were furnished. On cross-application for summary judgment, the court granted summary judgment in favor of defendant.
The critical issue on appeal is whether N.J.S. 2A:44-71 requires that the copy of the notice of intention must be received by the owner within five days of the filing of the notice, or whether it is sufficient that the copy be mailed to the owner within five days.
The applicable portion of N.J.S. 2A:44-71 (L. 1965, c. 75, § 1) provides:
A copy of the mechanics' notice of intention shall be served, within 5 days of such filing, upon the owner of the premises, of the land described therein, personally or by registered or certified mail, at his last known address, and unless such notice be so served upon the said owner, the filing of the said notice of intention shall have no force or effect."
In Elliot-Farber Roofing, etc., Co. v. Saitta, 79 N.J. Super. 568 (App. Div. 1963), this court had occasion to interpret L. 1957, c. 232, § 1, the precursor to the present 2A:44-71, in a factual situation closely resembling the instant one. In that case the materialman filed his notice of intention on September 5, 1961 and sent the owners, by registered mail, a notice of the filing on ...