This is a motion for summary judgment brought by defendants Donald and Diane Hurff against plaintiff Baldyga Construction Company, Inc. (Baldyga) in an action in which plaintiff seeks to enforce a mechanic's lien.
Plaintiff subcontractor is a masonry contractor which, sometime in 1977, contracted with a general contractor, the Behm Corporation (Behm), to do masonry work on a home being built for the Hurffs. Baldyga's contract called for it to perform work consisting of clearing the lot, staking out the
house, installing the footings, foundations, steps, flatwork, brickwork and fireplace, and finishing the grading. Various stages of this work were to be done at different times during the construction of the Hurff home, starting with the first work to be performed on the home and ending with one of the last jobs to be completed, the grading.
On November 2, 1977, prior to having furnished any materials for or having performed any labor on defendants' home, plaintiff filed a mechanic's notice of intention with the Clerk of Cape May County (File No. 19981) pursuant to the provisions of N.J.S.A. 2A:44-71 et seq. , and on the same date served a copy of said notice on the defendants, the Hurffs and Behm, by certified mail.
Baldyga then proceeded to complete the lay-out, excavation, footings and foundations of the house and porch. The value of this work is $7,679, of which $3,000 has been paid to plaintiff. This work was started in November 1977 and completed no later than January 1978.
Since January 1978 no labor or materials have been supplied or furnished to the Hurff home by plaintiff. The general contractor, without the knowledge of the Hurffs, hired another masonry contractor to complete the remainder of the masonry work. This work was performed during a five-day period in April 1978 and consisted of a brick facing on the downstairs half of the house, a fireplace and chimney, a concrete floor in the garage and a cement floor for the front porch.
Plaintiff, as subcontractor, asserts that it was at all times ready and able to complete the above-mentioned work and was waiting for notice to return to the job to do so. Plaintiff also asserts that when it left the Hurff job in January 1978 it was with the understanding that it would be called back to install the fireplace and chimney and to do the facing and concrete flooring, at different stages of construction.
The general contractor stopped work sometime in May 1978. When no work was performed by Behm or its subcontractors for a period of time thereafter, Hurff's attorney sent
a letter to Behm dated July 19, 1978, informing it that it was no longer on the job because of a breach of contract in failing to complete the house by June 1, as allegedly had been promised. Apparently, Behm is no longer operating its business.
Baldyga was not notified of this termination until a letter from Hurffs' attorney was received by plaintiff's attorney on August 14, 1978. The effect of this letter was to inform plaintiff that Behm was off the job and that ...