Section 13-4-19 - Rights of person furnishing labor or material and right of state with respect to taxes due. - New Mexico Statutes

13-4-19. Rights of person furnishing labor or material and right of state with respect to taxes due.

A.     Every person, firm or corporation who has furnished labor or material in the prosecution of work provided for in such contract, in respect of which a payment bond is furnished under Section 13-4-18 NMSA 1978, and who has not been paid in full therefor before the expiration of a period of ninety days after the day on which the last of the labor was done or performed by him or material was furnished or supplied by him for which such claim is made, and the state, in respect of which a payment bond is furnished under Section 13-4-18 NMSA 1978, by a contractor who does not have its principal place of business in New Mexico, for all taxes due arising out of construction services rendered under the contract, shall have the right to sue on such payment bond for the amount of the balance thereof unpaid at the time of the institution of such suit, and to prosecute such action to final execution and judgment for the sum or sums justly due him; provided, however, that any person having direct contractual relationship with a subcontractor, but no contractual relationship, express or implied, with the contractor furnishing such payment bond shall have a right of action upon said payment bond upon giving written notice to said contractor within ninety days from the date on which such person did or performed the last of the labor or furnished or supplied the last of the material for which such claim is made, stating with substantial accuracy the amount claimed, and the name of the party to whom the material was furnished or supplied or for whom the labor was done or performed. Such notice shall be served by mailing the same by registered mail, postage prepaid, in an envelope addressed to the contractor at any place he maintains an office or conducts his business or his residence, or in any manner in which the service of summons in civil process is authorized by law.   

B.     Claimant in such suit shall notify the obligee named in the bond of the beginning of such action, stating the amount claimed, and no judgment shall be entered in such action within thirty days after giving such notice. The obligee and any person, firm, corporation or the state having a cause of action on such bond may be admitted on motion as a party to such action, and the court shall determine the rights of all parties thereto. If the amount realized on such bond be insufficient to discharge all claims in full, such amount shall be distributed among the parties entitled thereto pro rata.   

C.     Except for suits by the state with respect to taxes, which shall be brought in the name of the bureau of revenue [abolished], every suit instituted under this section shall be brought in the name of the state of New Mexico for the use of the person suing in the district court in any judicial district in which the contract was to be performed and executed, or where the claimant resides, but no such suit, including one brought by the bureau of revenue, shall be commenced after the expiration of one year after the date of final settlement of such contract. The date of final settlement herein shall be that date set by the obligee in the final closing and settlement of payment, if any, due the contractor. The state of New Mexico shall not be liable for the payment of any costs or expenses of any such suit.   

D.     The obligee named in said bond is authorized and directed to furnish to any person, firm or corporation making application therefor who submits an affidavit that he or it has supplied labor or materials for such work and payment therefor has not been made or that he or it is being sued on any such bond, or to the bureau of revenue [abolished], a certified copy of such bond and the contract for which it was given, which copy shall be prima facie evidence of the contents, execution and delivery of the original, and, in case final settlement of such contract has been made, a certified statement of the date of such settlement which shall be conclusive as to such demand upon it. Applicants shall pay for such certified copies and certified statements such fees as the obligee fixes to cover the cost of preparation thereof.