Haneman, J. A. D.
(dissenting). I do not agree with my colleagues’ conclusion.
Plaintiff appeals from a judgment of the Chancery Division denying him a lien arising from a levy of execution upon rights and credits of William Brancatella (Brancatella) in and to certain fnnds in the possession of the City of Bayonne, and of Jacob Drogin (Drogin), trustee, and granting Prank Carpenter, trading as Prank Carpenter Company (Carpenter), a lien upon said funds.
On or about October 14, 1954 Brancatella entered into a contract with Bayonne for the construction of a municipal swimming pool and bath house. The contract provided, inter alia:
“The Contractor will be paid in monthly approximate estimates for work satisfactorily completed and approved by the Engineer, less ten percent (10%) retained for repairs and less any amount paid by the Municipality by reason of the Contractor having failed to assume the obligations and responsibilities required by this contract.
Hi ❖ sjc ijs * £ ❖ #
The Contractor shall guarantee all labor and materials for a period of one year from the date of acceptance of the work by the Municipality, making all needed repairs on the work as it progresses and during this period of one year, except those due to ordinary wear and tear. He agrees that during said period of one year, the Municipality may retain, out of moneys payable to him under this agreement, the sum of five percent (5%) of the amount of the contract; and that, should he fail to make the necessary repairs at once after due notice from the Engineer, the Municipality may expend the same or so much thereof as may be required in making the aforesaid needed repairs; provided, however, that in case of emergency, where in the opinion of the Engineer it would cause serious loss or damage, the Municipality may make repairs without previous notice and at the expense of the Contractor.
Upon receipt of written notice that the work is completed and ready for final inspection and acceptance, the Engineer shall promptly make such inspection. When he finds the work acceptable as specified and contracted for, the Engineer shall promptly issue a final certificate to the effect that the work provided for under this contract has been completed and accepted by him, and the entire balance found to be due to the Contractor shall be paid to the Contractor within thirty days of the date of the final certificate.
The entire balance found to be due to the Contractor shall consist of the difference between the total value of work satisfactorily completed and accepted and the sum of the monthly payments, less five percent retained for repairs as set forth above, and less any amounts paid out by the Municipality by reason of the Contractor having failed to assume the obligations and responsibilities as described in this contract.
The dale of acceptance shall be the date of the issuance of the final certificate by the Engineer, to the effect that the work has been completed and accepted by him.”
By resolution adopted January 17, 1956, Bayonne terminated the contract, alleging various breaches by Braneatella.
Some time between January 17, 1956 and April 3, 1956, Drogin, legal assistant of Bayonne, and the Mayor of Bayonne conferred with Braneatella concerning his inability to obtain labor and materials for the completion of the work required under the contract and were advised that because of his financial difficulties he could not obtain further labor or materials without a guarantee of payment from Bayonne. After additional conferences between Drogin, the mayor, the city engineer and various materialmen and labor representatives, assurances were given to the materialmen and laborers that they would he paid for future labor performed and materials furnished. Braneatella agreed that payments for the work as it progressed should thereafter he made by warrants drawn to the joint order of Braneatella and “Jacob Drogin, Trustee.” On April 3, 1956 Bayonne rescinded its action of termination and authorized Braneatella to proceed with the completion of the contract.
On April 19, 1956 plaintiff, having theretofore obtained a judgment in the amount of $1,592.75, with costs and interest, against Braneatella upon a cause of action not arising under the Braneatella-Bayonne contract, caused a levy to he made upon monies duo or to become due under said contract. The municipality had in its possession on that date the sum of $3,899.07, being the total of monthly-retentions of ten per cent of each prior estimate, as provided in the contract.
Upon certification of the city engineer of the completion of various items of work done by Braneatella, the governing body of Bayonne, by resolutions, authorized five separate payments between May 8, 1956 and June 26, 1956 to Branca tella and Drogin, trustee, in the total sum of $31,001.04. Each resolution provided that “* * * the said warrant be turned over to the said Jacob Drogin to be paid to the persons entitled to payment thereof.” The funds so received were deposited in an account denominated “City Pool Account Special” and subject to withdrawal upon the signature of Jacob Drogin, trustee. There remains in said account a balance of $270.94.
Subsequent to April 19, 1956 and prior to June 15, 1956, Prank Carpenter sold and delivered to Brancatella various items of supplies for the swimming pool locker rooms, at a cost of $4,977.14, for use in connection with the BrancatellaBayonne contract. Pie has received no payment on account thereof.
The swimming pool was opened to the public on or about June 15, 1956.
On June 16, 1956 the city engineer certified to the city commission of Bayonne that Brancatella had “satisfactorily completed 100% of his contract,” and was entitled to the payment of $12,155.31, being the balance due therefor. This certificate exhibits that Bayonne retained $3,208.45 under its final five per cent retention, which sum the municipality still retains.
On February 11, 1957 Carpenter filed a notice of municipal mechanics lien with Bayonne.
Plaintiff filed suit seeking to impress a first lien, arising from the above levy, on the funds so remaining in the hands of Drogin and Bayonne. Carpenter, by way of cross-claim, sought to establish a prior lien upon those funds by virtue of (1) Municipal Mechanics Lien Act, N. J. S. 2A :44-125 et seq.j (2) Municipal Trust Pund Act, N. J. 8. 2A :44H48 (misnumbered 2A :44-147); (3) General Equitable Principles, or (4) Municipal Bond Act, N. J. 8. A. 40 :1 — 85.
After trial, judgment was entered directing that Drogin pay to Carpenter the balance of $270.93 remaining in his hands, and that Bayonne pay to Carpenter the sum of $3,259.91. Plaintiff appeals.
I.
We shall first consider plaintiffs claimed priority.
There is absent any proof that there were any funds due Brancatella for current work on his contract on April 19, 1956, except the retained percentage of $3,899.07.
Plaintiff’s levy was upon Brancatella’s rights and credits under N. J. S. 2A :17 — 57 to 63. Its rights to payment can rise no higher than Brancatella’s rights under the contract of October 14, 1954.
For rights and credits to be subject to levy and execution they must not only be liquidated but they must represent certain and existing debts. A debt which is uncertain and contingent is not subject to levy. Although the payment of an existing debt need not be presently demandable, it must be fully due and owable in futuro. A debt, for present purposes, may be due although not immediately payable and although it could be defeated by conditions subsequent or be reducible by an offset of the debtor. Molloy v. Prudential Ins. Co. of America, 129 Conn. 251, 27 A. 2d 387 (Sup. Ct. Err. 1942); 7 C. J. S. Attachment § 16, p. 206; 38 C. J. S. Garnishment § 87, p. 290; Terry v. Owatonna Canning Co., 119 V. J. L. 455 (E. & A. 1938); Cohen v. Cohen, 126 N. J. L. 605 (Sup. Ct. 1941); Vaccaro v. Sauta, 131 N. J. L. 136 (Sup. Ct. 1944).
At the time of plaintiff’s levy none of the monies subsequently paid to Drogin, trustee, and Brancatella were due and owing. The debts, in satisfaction of which those payments were made, were then contingent upon performance of additional work or the furnishing of additional material by Brancatella as required by the terms of his contract with Bayonne. The creation of any further debt from Bayonne was uncertain. It follows that there was no valid levy on the funds which became due to Brancatella for work performed or materials furnished subsequent to April 19, 1956. Plaintiff, therefore, has no lien on the balance remaining in Drogin’s hands.
Insofar as the retained percentage of $3,208.45 remaining in Bayonne’s custody is concerned, a different result eventuates. When the levy was made on April 19, 1956, Bayonne had in its hands monies due Brancatella in the amount of $3,899.07. This represented ten per cent of the monies due Brancatella for “work [theretofore] satisfactorily completed” by him under the contract. This sum was retained to compensate the municipality for “repairs” to the work so completed and for “any amount paid by the Municipality [Bayonne] by reason of the Contractor [Brancatella] having failed to assume the obligations and responsibilities required by this contract.” Bayonne was indebted to Brancatella on April 19, 1956 in the amount of $3,899.07. This debt was certain and liquidated. It was subject only to a possible offset for repairs required to be made and for noncompliance with the obligations and responsibilities required under the contract between the date of retention and the final completion and acceptance of the work performed. One-half of said $3,899.07 was payable to Brancatella, subject to the foregoing possible offset, within 30 days after certification by the city engineer that the work called for under the contract had been finally completed as “specified and contracted for” and the remaining balance was payable to Brancatella one year after such acceptance, subject only to such possible additional offsets. Plaintiff had a valid levy upon $3,899.07 on April 19, 1956. There is no proof that there was any offset against the ten per cent fund prior to final acceptance. The levy and the lien arising therefrom to the extent of at least one-half of this sum ($1,949.54), which was transferred to the five per cent fund retained by Bayonne upon final acceptance, attached to that fund. Plaintiff has a valid first lien on the fund remaining in the custody of Bayonne to the extent of $1,949.54 for the satisfaction of his judgment.
As to the monies remaining in the hands of Drogin, the contrary results. All such monies were paid to Drogin for work actually completed by Brancatella pursuant to the terms of Ms contract with Bayonne. Drogin was the alter ego of Brancatella for the disbursement of those monies to persons who had furnished labor or materials in furtherance of his contract. To all intents and purposes this was a payment to Brancatella. Cf. Fidelity Deposit Co. of Maryland v. McClintic Marshall Corp., infra. The funds in Drogin’s custody as trustee are charged with a trust in favor of Carpenter.
I am not passing upon any possible liability of Bayonne for eventually paying the balance of $1,949.53 to Brancatella as this question is neither raised nor argued.
It becomes necessary to determine the status of Carpenter’s claim to the funds. As above noted, he advanced four alternative theories in substantiation of his position. I shall first consider the conclusion of the majority that under general equitable principles the monies remaining in the hands of Bayonne were a trust fund primarily for the benefit of Carpenter.
II.
Gesíebae Equity.
Carpenter is attempting to establish a materialman’s lien on the funds, under one or more of the above listed theories, whether designated by him as a “lien” or a “trust.” He is thus seeking a lien unknown to the common law.
The court, in Friedman v. Stein, 4 N. J. 34, 40 (1950). said:
“The mechanic’s and materialman’s liens had their genesis in the civil lavr. They are unknown to the common law; and they have had no recognition in equity except as prescribed by statute. South Fork Canal Co. v. Gordon, 6 Wall. 561, 18 L. Ed. 894 (1868) ; Van Stone v. Stillwell & Bierce Mfg. Co., 142 U. S. 128, 12 S. Ct. 181, 35 L. Ed. 961 (1891) ; Brescia Construction Co. v. Walart Construction Co., 264 N. Y. 260, 190 N. E. 484, 93 A. L. R. 1148 (1934). 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.”
(The rule thus enunciated is applicable to and pervades each of the grounds urged by Carpenter and will not, therefore, be repeated in the following detailed discussion of his additional individual contentions.)
Generally, in the absence of statute, one who furnishes labor or material for a building or any structure which is part of the land has no lien, legal or equitable, on the land, the structure or the contract price. This applies to municipalities as well as individuals. See Fidelity & Deposit Co., Maryland v. McClintic Marshall Corp., 115 N. J. Eq. 470 (Ch. 1934), affirmed on opinion below 117 N. J. Eq. 440 (E. & A. 1935); Friedman v. Stein, supra.
Carpenter relies upon Goodwillie v. City of Bayonne, 2 N. J. 88 (1949), and National Surety Corp. v. Barth, 11 N. J. 506 (1953), as authority for its argument that general equitable consideration requires that the monies retained by Bayonne constitute a trust fund for laborers and materialmen.
In Goodwillie, the funds impressed with a trust obligation were obtained “through a United States PWA outright grant of $1,785,000 and a municipal bond issue for $2,430,000.” The opinion discloses, 2 N. J., at pages 90-93, that:
“The city * * * agreed to devote all moneys received from the grant and bond issue to the construction of the terminal and to deposit them in a special ‘Construction Account’ and to pay therefrom all the legal and engineering services, administrative and overhead expenses incurred by the company.
* * * * # * * *
The contract under which the federal fundís became available provided that the grant, as well as the proceeds of the city’s own bond issue, was required to be placed in a special ‘Construction Account’ to be used solely for the construction of the terminal. These funds were received and set aside by the city for specific purposes. When accepted by the city, they became earmarked and impressed with a trust obligating the city to expend them for the designated uses. Mayor, etc. of City of Hoboken v. Ivison, 29 N. J. L. 65 (Sup. Ct. 1860) ; Maurello v. Broadway Bank & Trust Co., 114 N. J. L. 167 (E. & A. 1935) ; Borough of Deal v. Asbury Park and Ocean Grove Bank, 118 N. J. Eq. 297 (E. & A. 1935); Hopper v. New Jersey Title Guarantee & Trust Co., 127 N. J. Eq. 1 (E. & A. 1940).
The deposits so made and subsequent additions thereto became impressed with the obligation to be disbursed only as agreed upon. The city, having failed to establish any equitable basis for not making the payments according to the designated purposes, must comply with the order entered below.” (Emphasis supplied)
In National Surety Corp., supra, the court said, 11 IV. J., at pages 513 — 515:
“Thus there are three sources from which these funds for public housing improvements arise — namely federal government appropriations, state appropriations out of the general state fund, and moneys to be raised from a bond issue. On public referendum a bond issue was approved. Chapter 324 of the Laws of 1946, pages 1363-1372, N. J. S. A. 55:140 — 23 note, adopted at the general election provided in part:
Tl. The proceeds from the sale of the bonds, exclusive of accrued interest and premiums, and all interest on deposits received from depositories, shall be paid to the State Treasurer and be held by him in a separate fund, and he deposited in such depositories as may be selected by him to the credit of the fund, which fund shall be known as the “State Housing Fund.’’ All accrued interest and premiums from the sale of bonds except as provided in section fourteen hereof, together with interest received from depositories of such funds, shall be held by the State Treasurer to the credit of the said State Housing Fund.
“ ‘12. The moneys in the said State Housing- Fund are hereby specifically dedicated to providing housing for veterans of World War II and other people of the State and shall be disposed of in accordance with this act through such agencies or by such means as the Legislature may by act provide for such purpose. Such fund shall be held for the demand of the Commissioner of Economic Development or his successor, and shall be drawn upon and disbursed on his order, as other funds are now disbursed from the State Treasury. At any time prior to the issuance and sale of bonds under this act the State Treasurer is hereby authorized to transfer from any available money in the treasury of the State to the credit of the State Housing Fund such sum as may be deemed necessary for the purposes of this act by the Commissioner of Economic Development, which said sum so transferred shall be returned to the treasury of this State by the treasurer thereof from the I>roceeds of the sale of the first issue of bonds.’ (Emphasis added.)
The Legislature clearly intended to set aside all moneys received from these three sources and to earmark them for the purposes of public housing. The money was not available for any use except in furtherance of the policies of the act.
In Mayor and Council of Hoboken v. Ivison, 29 N. J. L. 65 (Sup. Ct. 1860), the Supreme Court stated at page 67:
‘Upon general principles of law, a fund raised for a specific purpose, and placed in the hands of an officer for such specific purpose, cannot lawfully be applied to any other. Any such other appropriation would be a violation of the trust, and so contrary to law.’
Fidelity and Deposit Company of Maryland v. McClintic-Marshall Corporation, 115 N. J. Eq. 470 (Ch. 1934), affirmed in a per curiam opinion, 117 N. J. Eq. 440 (E. & A. 1935), is distinguishable; in that case no fund was set aside [emphasis supplied], such as we have here.
Although these eases did not involve funds held by the State the principle is still the same. Clearly funds have been appropriated and dedicated for a specific purpose by the United States Congress, the New Jersey Legislature, and the voters of the State of New Jersey. A special fund labelled ‘State Housing Bund’ has been established and all moneys deposited therein are earmarked for the purposes of emergency housing. Withdrawals can be made only upon the signature of the State Commissioner of Taxation and Finance on vouchers certified or approved by the Administrator. The material-men and laborers, and therefore National Surety Corporation in view of its subrogation rights, have an equitable interest in these funds. Such an interest cannot be defeated by the State by the exercise of a setoff based upon the personal debt of the contractor totally unrelated to the work performed in furtherance of the purposes for which the fund was created.”
In each instance special bank accounts were created and the monies to pay for the contemplated improvements deposited therein. By virtue of contract and legislative fiat the funds so deposited were impressed with a trust to be used only in paying for the authorized construction.
The matter sub judice is distinguishable from Goodwillie and National Surety Corp., supra, in that no contract or statute required that the funds be segregated from general municipal funds and deposited in a separate account; that the funds required for the payment of the improvement did not come from monies especially earmarked and set aside for that purpose; and that no special deposit was actually made of monies in advance of the execution of the Brancatella contract.
There is nothing in the facts of the case sub judice to distinguish the contract, the source of the funds, the ac counting records and the payments provided for the completion of the work under the contract from the ordinary municipal contract, the source of the funds, the accounting records and the payments provided for the completion of the work under the contract. In every instance where a municipality has authorized a public improvement and provided funds therefor recognized bookkeeping and accounting methods require an entry in the municipal financial records reflecting a separate appropriation account disclosing the amount of monies allotted for such purposes. This is not to say, paraphrasing the language of National Surety Corp. v. Barth, supra, 11 N. J., at page 515, that a separate “fund * * * has [thereby] been established and all moneys de-
posited therein * * * earmarked for the purposes” of undertaking the public improvement. 1 am fearful that the result attained by my colleagues under the facts here present might lead to the conclusion that a laborer or materialman performing work or furnishing material for the completion of (¡very public improvement has a preferential “equitable lien” on monies due or to grow due to the prime contractor. Such a lien, as above noted, was unknown to both equity and the common law. Were a laborer or materialman entitled to such a lien there would be no necessity for the several remedial statutes passed by the Legislature, above quoted, for their protection.
It becomes necessary to consider Carpenter’s additionally asserted grounds.
III.
Muxicitae Mechanics Lten.
N. J. S. 2A :44-128 provides, in part:
“Any person who, as laborer, mechanic, materialman, merchant or trader, or subcontractor, in pursuance of or conformity with the terms of any contract for any public improvement made between any person and a public agency as defined in section 2A:44-126 of this title and authorized by law to make contracts for the making of public improvements, performs any labor or furnishes any materials, including the furnishing of oil, gasoline or lubricants and vehicle use, toward the performance or completion of any such contract, shall, on complying with the provisions of sections 2A:44r-132 and 2A ¡44^-133 of this title, have a lien for the value of the labor or materials, or both, upon the moneys due or to grow due under the contract and in the control of the public agency, to the full value of the claim or demand. * *
N. J. S. 2A:4A-132 provides:
“A lien claimant may, at any time before the whole work to be performed by the contractor for the public agency is either completed or accepted hy resolution of the public agency, or within 60 days thereafter, file with the chairman or other head officer or with the secretary or clerk of the public agency, a notice of lien claim verified by oath of the claimant or his agent.” (Emphasis supplied)
A notice of lien claim must be filed within 60 days either of the completion of the work called for under the contract with a public agency or of the acceptance thereof by such agency. The requirement is in the disjunctive.
In Hildreth Granite Co. v. Hudson Freeholders, 87 N. J. Eq. 316 (E. & A. 1917), the court had before it the then Municipal Mechanics Lien Law, 3 Compiled Statutes, § 2, p. 3315, which reads, in part:
“At any time before the whole work to be performed by the contractor for any such city, town, township or other municipality is completed or accepted by said city, town, township or other municipality, and within fifteen days after the same is so completed or accepted, any claimant may file * * * notices * * (Emphasis supplied)
The court said, at page 319:
“The pertinent provision of the statute which has been above recited, is that within 15 days after the work is completed or accepted’ the claimant may file with the chairman, etc., his notice of claim. It is to be observed that the phrase ‘completed or accepted’ is in the disjunctive, and is intended, as we think, to meet two different conditions. One, where the contract has been fully performed by the contractor; and, the other, where he has defaulted in full perform anee, but the municipality has accepted the work so far as it has been done. In the first case, that is, where the work has been completed, the claimant is required to file his notice within 15 days after the date of completion. In the other case, where the work has not been completed, where the contractor has abandoned it, but where what has been done by Mm is accepted by the municipality, the claimant must file his notice within 15 days after such acceptance. In the pending ease the work, as has already been stated, was completed on the 31st of October. In order to give validity to the appellants’ notice, they were required to file it on or before the 15th of November. They failed to do so until the expiration of 10 days beyond" that time. We agree with the Vice Chancellor, therefore, that the statutory provision was not complied with by them, and that they were not entitled to the lien which they claimed.”
What was said in IlildratJi, supra, is applicable to the present statute.
The question of completion is a factual issue. The public has been using the facilities of the swimming pool and bath house since June 15, 1956. On June 26, 1956 the city-engineer of Bayonne issued his final certificate that Braneateila “* * * has satisfactorily completed 100% of his contract, * * This constituted a certificate that “the work has been completed and accepted by him.” The contract provided that acceptance should he the date of the issuance of such a certificate. The municipality, by the inclusion of that provision in the contract, obviated the necessity of acceptance by formal resolution of the governing body. We find, therefore, that Braneatella had both completed the work called for under his contract and that there had been an acceptance thereof by Bayonne no later than June 26, 1956. Defendant’s notice was filed on February 11, 1957, more than 60 days after the completion date and was therefore insufficient to give rise to a lien under the express terms of the statute.
IV.
Municipal Tkust Fund.
N. J. S. 2A :44-147 (which should be numbered 2A :44-148) provides:
“All money paid by the state of New Jersey or by any agency, commission or department thereof, or by any county, municipality or school district in the state, to any person pursuant to the provisions of any contract for any public improvement made between any such person and the state or any agency, commission or department thereof, or any county, municipality or school district in the state, shall constitute a trust fund in the hands of such person as such contractor, until all claims for labor, materials and other charges incurred in connection with the performance of such contract shall have been fully paid.”
This statute applies only to funds actually paid by a municipality to a contractor engaged in constructing a public improvement. No trust is impressed upon funds in the hands of the municipality prior to payment to such contractor. National Surety Corp. v. Barth, supra.
Carpenter, therefore, has no lien upon the monies remaining in the hands of Bayonne.
Y.
Municipal Bond Act, N. J. S. A. 40 :l-85.
N. J. S. A. 40 :l-85 reads:
“The proceeds of the sale of any obligations issued under this article shall be applied only to the purposes for which such obligations are authorized, except that if for any reason any part of such proceeds are not necessary for such purposes, the said part shall be transferred to any reserve or sinking fund for the retirement of debt or may by resolution of a county board of chosen freeholders adopted pursuant to the provisions of subtitle two of Title 40 of the Revised Statutes or by ordinance of a municipality adopted pursuant to the provisions of chapter forty-nine of Title 40 of the Revised Statutes be appropriated to and used to finance the cost of any other purpose or purposes which have the same or a longer period of usefulness and which this act authorizes to be financed by the issuance of bonds.”
N. J. S. A. 40 :l-85 is not applicable. That statute does not create a fund for the benefit of laborers or materialmen furnishing labor or materials for the public improvement for the completion of which municipal obligations were au thorized to be issued and sold. Nor does it create a special lien upon the proceeds of the sale of such municipal obligations for the benefit of such laborers or materialmen. The purpose and intent of that statute is to prevent the use hy the municipality of the proceeds of the sale of municipal obligations for any purpose other than for the completion of the public improvement for which they were specifically authorized and to make certain that the proceeds are so applied. A payment by a municipality of some portion or all of the proceeds of a sale of its obligations to a claimant of a contractor where the debt due the contractor arose under a contract for the construction of the specific public improvement for the accomplishment of which the issuance and sale of said obligations were authorized is a constructive application of the proceeds of the sale of said obligations to the authorized purpose. This follows whether the claimant’s interest arose under or in connection with that contract or otherwise.
Additionally, the original record with which we were supplied failed to disclose the source of the funds employed in the payment of the improvement. As a result of the exercise of our original jurisdiction, B. R. 1:5-4, made applicable to the Appellate Division by R. R. 2:5, counsel have submitted this missing proof. That proof discloses that the funds used fall into three categories; (1) general funds of the municipality provided for in annual budget appropriations; (2) monies raised by subscription of and donation by the general public; (3) monies resulting from the issuance and sale of municipal bonds. The funds remaining in the hands of Bayonne are not traceable to the proceeds of the sale of municipal obligations and hence N. J. S. A. 40:1-85 is in any event not applicable.
Carpenter has no lien on the funds in the hands of Bayonne by virtue of N. J. S. A. 40:1-85.
I would reverse and remand consistent with the foregoing conclusions.
