On appeal from the Superior Court, Law Division, Cape May, whose opinion is reported at 164 N.J. Super. at 587 (1978).
This is an appeal pursuant to leave granted, from the denial of summary judgment in the Law Division. R. 2:2-4.
The procedural history and facts of the case are adequately set out in the trial judge's opinion which is reported at 164 N.J. Super. at 587 (Law Div. 1978).
The trial judge concluded:
It would be unreasonable and contrary to the remedial spirit of the mechanic's lien law to bar a subcontractor from recovery under its claim where it fully expected and was required by contract to return to complete its work, and such return was precluded by an abandonment and termination, not the fault of the subcontractor. In the present case, not to consider the abandonment and termination of the contract in determining the date of "last labor performed," would be to reach such a result. It would also leave this subcontractor, and subcontractors in a similar position, largely at the mercy of owners and general contractors. [at 594]
Contrary to the trial judge's assumption that the call for strict construction of the mechanic's liens statutes might, in
many cases, be softened by the facts of a particular case, the language of our cases commands otherwise. Thus, in Friedman v. Stein , 4 N.J. 34 (1950), it was stated:
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. [Citations omitted]. Thus it is that these liens are exclusively statutory in origin; and, being in derogation of the common law, the provisions of the statute giving rise to the lien are to be strictly construed, while the provisions for the enforcement of the lien thereby created are to be liberally construed to effectuate the remedial statutory policy of providing priority of payment of the price or value of work performed and materials furnished in the erection or reparation of a building or other structure and this wise the security of the land and buildings for the payment of that which has made for an assumed enhancement of the value of the property. [Citations omitted].
The claim for labor and materials is a property right which does not ripen into an enforceable lien on the land and building until there has been substantial compliance with all the statutory conditions prerequisite. This is a familiar rule of construction. It is fundamental that the lien does not materialize until all the statutory requisites are met. This by legislative ordinance. [Citations omitted]. The statutory lien is separate and distinct from the underlying debt; the lien affords a cumulative remedy for the enforcement of the debt. [Citation omitted]. The claimant's status is that of a general creditor until those things are done which give him the security of the statutory lien. Until then, the lien is inchoate merely. [at 40-41]
Nor does the holding of the former Court of Errors and Appeals in Derrickson v. Edwards , 29 N.J.L. 468 (E. & A. 1861), support the action taken by the trial judge. The ...