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I. S. Smick Lumber v. Hubschmidt

Decided: November 7, 1980.

I. S. SMICK LUMBER, PLAINTIFF,
v.
MARTHA E. HUBSCHMIDT AND JOHN F. HUBSCHMIDT, HER HUSBAND ET AL., DEFENDANTS



Miller, J.s.c.

Miller

This is an action by a lumberyard on an unpaid bill for materials against the contractor and also against the owners of the land on which the materials were used. The suit against the landowners is based upon the Mechanics Lien Act, N.J.S.A. 2A:44-64 et seq.

The action presents itself on the landowners' motion for summary judgment on the ground that the materialman has no valid lien by reason of its failure to comply with the provisions of N.J.S.A. 2A:44-71. Plaintiff has filed a cross-motion opposing defendants' motion and seeking summary judgment as to the issue of liability.

The pertinent provisions of N.J.S.A. 2A:44-71 are as follows:

Except as hereinafter in this section and in section 2A:44-75 of this Title provided, no one shall be entitled to a lien under the provisions of this article for any labor performed or materials furnished prior to the filing, in the office of the proper county clerk, of a mechanic's notice of intention to perform such labor or furnish such materials.

A copy of the mechanic's 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 said owner, the filing of the said notice of intention shall have no force or effect.

Defendants admit receipt of the notice of intention within five days of the filing. Service, however, was by ordinary mail rather than by certified or registered mail. The issue thus framed is whether actual delivery of notice within five days of filing the notice of intention constitutes "personal service" within the meaning of the statute. The court concludes that it does. Accordingly, defendants' motion for summary judgment is denied and plaintiff's motion for summary judgment as to the issue of liability is granted pursuant to R. 4:46-2. Judson v. Peoples Bank & Trust Co. of Westfield , 17 N.J. 67 (1954).

Wilson v. Trenton , 53 N.J.L. 645 (1891), is the leading New Jersey case interpreting the meaning of personal service of notice. In that case a resident landowner objected to an assessment imposed on his land on the ground that certain notices had not been given as required by law.

The law governing the method and manner by which private property in the City of Trenton was to be condemned or assessed for public purposes required the service of a notice indicating the amount of the assessment on every person against whom the assessment was being made. Since no mode of service was prescribed by the act, the court determined that personal service was required.

Service had been effectuated on the landowner by leaving a copy of the notice at his residence with a member of his family. Receipt of this notice was admitted, but it was argued by him that such service was insufficient to constitute "personal service." In rejecting this argument, the court stated:

Personal service, within the meaning of such acts, is to be distinguished, on the one hand, from what may be called official service, such as the personal service of a summons in an action at law, which is required to be made by the officer on the defendant in person; and, on the other hand, from substituted or constructive service, which is such as by law conclusively results from the performance of certain prescribed acts, such as publication, posting and the like. The service required by this and similar statutes need not be made ...


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