On appeal from the Superior Court of New Jersey, Law Division, Atlantic County.
O'Brien, Skillman and Landau. The opinion of the court was delivered by O'Brien, J.A.D.
At issue in this case is the right of a materialman for a materialman to obtain a mechanic's lien pursuant to N.J.S.A. 2A:44-64 et seq. The trial judge ruled that there was no such right. Under the circumstances of this case, we disagree and reverse.
Hilton New Jersey Corporation (Hilton) was the owner of the property on which the mechanic's lien is sought.*fn1 Hilton had awarded a contract for the plumbing work in the construction of a casino hotel on the property to a joint venture consisting of John F. Harkins Co., Inc. and Henkels & McCoy, Inc. (Harkins). In January 1984, Harkins placed an order with defendant corporation Clos-O-Mat (Clos-O-Mat) for 20 Clos-O-Mat toilet units. This order was placed through defendant Robert M. Gossweiler (Gossweiler), an officer of Clos-O-Mat. Fourteen of those Clos-O-Mat units were purchased by Clos-O-Mat and Gossweiler from plaintiff William G. Burris, Jr. & Son, Inc., trading as Environmental Systems Consultants (Burris).
On January 27, 1985, prior to delivery of the units, Burris filed a mechanic's notice of intention with the Atlantic County Clerk pursuant to N.J.S.A. 2A:44-71, a copy of which it served upon Hilton. All of the units were delivered to the job site on February 5 and February 6, 1985. Harkins signed receipts for
the units which were installed in the casino hotel by employees of Harkins.
On May 2, 1985, Burris filed a mechanic's lien claim pursuant to N.J.S.A. 2A:44-91 and then instituted this suit pursuant to N.J.S.A. 2A:44-97. The amount stated in the lien claim was $29,750, representing a per-unit cost of $2,125, plus freight charges of $150 for a total of $29,900.
Harkins was paid by Hilton for all Clos-O-Mat units installed in the casino hotel and Harkins contends it paid Clos-O-Mat for all those units. This action was defended by Harkins as it agreed in its contract to indemnify Hilton against mechanics' liens. It is contended that Burris is a materialman for a materialman, and as such, is not entitled to obtain a lien under N.J.S.A. 2A:44-66 et seq. As noted, the trial judge agreed.
"Persons supplying to a materialman . . . must come clearly within the terms of the statute, or they can claim no lien. They are so far removed from the owner that the privilege of a lien is not often extended to them, and the plainest expression of law must be used to entitle them to this remedy." 36 Am.Jur. Mechanics' Liens, § 52, p. 47. Morris County Industrial Park v. Thomas Nicol Co., 35 N.J. 522, 531 (1961); Chesebro-Whitman Co., Inc. v. Edenboro Apts., Inc., 86 N.J. Super. 422, 428 (App.Div.1965).
Mechanics' and materialmen's 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. Friedman v. Stein, 4 N.J. 34, 40 (1950). However, 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. Ibid. Since we are called upon to interpret the provisions of N.J.S.A.
2A:44-66 which gives rise to the lien, we must strictly ...