Matthews, Lora and Morgan. The opinion of the court was delivered by Matthews, P.J.A.D.
This appeal involves an action based on the mechanic's lien statute, N.J.S.A. 2A:44-64 et seq. Plaintiff, a supplier of building materials, filed a complaint on May 30, 1975 against defendants Saint Brendan Construction Co. (builder), the Winklers (purchasers of the home built by the builder) and Manufacturers Hanover Trust Company (mortgagee). The builder failed to answer and a default judgment was entered against it. After hearing argument the trial judge entered an order granting summary judgment in favor of the purchasers and mortgagee.
The facts are undisputed. The builder requested plaintiff to supply it with certain building construction materials to be used in construction of a house on real property owned by it. On September 20, 1974, prior to furnishing the materials, plaintiff filed a mechanic's notice of intention with the Monmouth County Clerk pursuant to N.J.S.A. 2A:44-71. Thereafter, and until March 14, 1975, plaintiff delivered materials and supplies to the building site valued at $10,031.74 for which it has yet to be paid.
On April 2, 1975 the builder conveyed the property to the Winklers. A mortgage to Manufacturers Hanover Trust was recorded in the Monmouth County Clerk's Office on April 4, 1975.
Plaintiff filed its lien claim with the Monmouth County Clerk on May 21, 1975, within four months of the date when materials were last furnished, as required by N.J.S.A. 2A:44-91.
The action on the lien claim was instituted in the Law Division by the filing of the complaint with the clerk on May 30, 1975. A letter requesting the clerk to supply plaintiff's attorney with a certificate of commencement accompanied the complaint (N.J.S.A. 2A:44-101). The certificate was in fact issued but (for reasons beyond plaintiff's control) it was dated June 19 (20 days after the filing of the action) and was not filed with the Monmouth County Clerk for endorsement until June 24, 1975. The conceded failure to present the certificate to the county clerk for endorsement within ten days of the commencement of the action resulted in summary judgment for defendants. Although plaintiff caused its lien claim to be endorsed with the appropriate certificate within the four-month period required by N.J.S.A. 2A:44-99, its failure to have its lien claim endorsed within ten days of the commencement of the action, pursuant to N.J.S.A. 2A:44-101, was deemed fatally defective.
N.J.S.A. 2A:44-101 provides:
The plaintiff in an action brought in the Superior Court or a county district court on a lien claim, shall obtain from the clerk of such court a certificate to the effect that an action has been commenced in that court on such lien claim, specifying the court wherein the action is brought, and the date when such action was so commenced. The certificate shall be presented to the proper county clerk within 10 days after the commencement of the action, who shall indorse on the lien claim that an action thereon has been commenced , specifying the court wherein, and the date when such action was commenced. [Emphasis supplied]
A corollary to this section is N.J.S.A. 2A:44-99:
The county clerk shall, upon the commencement of the civil action, commenced in the county court or, upon the presentation of the certificate prescribed in section 2A:44-101 of this title, if commenced in the superior or county district court, indorse on the lien claim the time of the commencement of the action.
If no such indorsement is made within 4 months or within the extended period provided by section 2A:44-98 of this title, from the last date of the labor performed or materials furnished , or if such claimant shall fail to issue the summons in the action within 5 days after the filing of the complaint or to prosecute his claim diligently within 1 year from the commencement of the action or such further time as the court may by order ...