Gotheiner v. Lenihan

• Decision Date: 04 March 1942
• Citation: 20 N.J.Misc. 119,25 A.2d 430
• Parties: GOTHEINER et al. v. LENIHAN.
• Court: New Jersey Supreme Court

25 A.2d 430

20 N.J.Misc. 119

GOTHEINER et al.

v. LENIHAN.

Supreme Court of New Jersey, Essex County.

March 4, 1942.

Action by Richard L. Gotheiner and others against Walter A. Lenihan to recover damages on account of an automobile accident. On motions by plaintiffs and by defendant raising questions involving the application of the statute of limitations.

Motions denied in part and sustained in part.

Leslie L. Vanderbilt, of Newark, for plaintiffs.

McDermott, Enright & Carpenter, of Jersey City (James P. Beggans, of Jersey City, of counsel), for defendant.

WILLIAM A. SMITH, Supreme Court Commissioner.

This matter was submitted to the Court on two motions, one by the plaintiffs and one by the defendant, and there are raised two general questions having to do with the application of the statute of limitations.

The action is brought to recover damages on account of an automobile accident which happened on September 17, 1938, and of course that is the date on which the cause of action accrued. The suit was instituted on December 13, 1940, more than two years after the accrual of the cause of action. The plaintiffs are residents of this state and the defendant is a non-resident. Service was obtained on the defendant through the Commissioner of Motor Vehicles in accordance with the statute: 39:7-2, N. J.S.A. 39:7-2.

Without specifically referring to the provisions of the answer and reply, let it suffice to say that both parties, the plaintiffs in their reply and the defendants in their answer, have reserved the right under point of law to move at or before the trial for the determination of the questions involved.

The questions involved are first whether or not the statute of limitations is a bar to this action, and second, if it is, whether the defense of fraud and covin pleaded in reply to the answer setting up the statute of limitations, as charged by the plaintiffs against the defendant, postponed or extended the operation of the statute.

On the question as to the plea of the statute of limitations as set up by the defendant, the plaintiff replies that the defendant was not a resident of the State of New Jersey when the cause of action accrued but was a resident of the State of Pennsylvania, at which place he was served with the summons and complaint by the Commissioner of Motor Vehicles of New Jersey, and that therefore the statute of limitations, 2:24-2, N.J.S.A. 2:24-2, requiring that all actions of this character shall be commenced within two years does not apply because, by Section 2:24-7, N. J.S.A. 2:24-7, if the person against whom the cause of action may exist is not a resident of this state when such cause of action accrued, the time or times during which such person is not resident within this state shall not be computed as part of the period of time, within which such actions are required to be commenced by the section hereinbefore mentioned, and permits the commencement of the action after the accrual thereof within the period limited, exclusive of such time or times of non-residency.

No rejoinder is filed by the defendant putting at issue the allegation of the non-residence of the defendant, so we may assume that the defendant's non-residence is admitted.

Applying the plain wording of the statute of limitations to this cause of action it would appear that the statute of limitations had not tolled at the time the action was commenced as the defendant was a non-resident. It is urged, however, that by reason of the fact that service was obtained through the Commissioner of Motor Vehicles under the provisions of the Motor Vehicle Act, that the non-resident should be given the benefits of a resident with regard to the application of the statute.

The service, as has been stated in this action, was made on the defendant through the Commissioner of Motor Vehicles under the provisions of R.S. 39:7-2, N.J.S.A. 39:7-2. This act, in effect, makes nonresident operators or owners authorize the Commissioner of Motor Vehicles to be their agent for the acceptance of service of process, and the act by its subsequent sections provides how service shall be handled. The act, 39:7-2, N.J.S.A. 39:7-2, provides as to the effect of the service on the Commissioners as follows: "That any such process against him or them which is so served shall be of the same legal force and validity as if served upon him or them personally." The service was made in this case as provided by this statute. The effect of this service as stated in the act, 39:7-2, N.J.S.A. 39:7-2, is that it is the same as if the summons and complaint were served on the defendant personally within this state. If service had been made in this case upon the non-resident in this state on the date the Motor Vehicle Commissioner was served, the statute of limitations would have tolled under the provisions of 2:24-7, N.J.S.A. 2:24-7, which has been heretofore referred to with regard to the limitation as to non-residence.

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