Josephson v. Siegel

• Decision Date: 28 April 1933
• Parties: JOSEPHSON v. SIEGEL et al.
• Court: New Jersey Supreme Court

165 A. 869

JOSEPHSON

v. SIEGEL et al.

Supreme Court of New Jersey.

April 28, 1933.

Syllabus by the Court.

1. The question of legality of service upon a nonresident under chapter 69, Pamph. Laws 1930 (Comp. St. Supp. § 135—96a(l) et seq.), is properly presented by motion, supported by evidence taken by depositions or as the court may direct.

2. A motor vehicle having been duly registered in New Jersey by its owner, and neither of the nonresident corporate defendants being the chauffeur, operator, or owner thereof, service of summons and complaint having been made as against the corporate defendants on the commissioner of motor vehicles under chapter 69, P. L. 1930 (Comp. St. Supp. § 135—96a(l) et seq.), held, such service was defective and is set aside.

Action by Glenna Josephson, by Philip Josephson, her next friend, against Daniel Siegel, sometimes called David Siegel, and others. On motion to vacate and set aside service of summons and complaint upon defendants Dolly Fruit Products Corporation and I. Lefkowitz & Sons, Incorporated.

Service of summons and complaint vacated and set aside.

Argued February term, 1933, before TRENCHARD, CASE, and BROGAN, JJ.

Samuel Rosenfeld, of Paterson, for plaintiff.

Lionel P. Kristeller, of Newark, for defendants Dolly Fruits Products Corporation and I. Lefkowitz & Sons, Inc.

CASE, Justice.

Plaintiff's action is to recover for personal injuries in being struck, on July 9, 1931, in the city of Paterson, by an automobile registered in the state of New Jersey by, and in the name of, Daniel Siegel, sometimes called David Siegel, as owner, and bearing 1931 New Jersey registration license No. U38025.

The complaint contains three counts, the first charging that Siegel was the owner and operator of the car, the second charging that Dolly Fruit Products Corporation was the owner and that Siegel was, as its agent and servant, the operator, and the third charging that I. Lefkowitz & Sons, Inc., a corporation, was the owner and that Siegel was, as its agent and servant, the operator. The two corporations were of the state of New York, with no place of business in New Jersey, and plaintiff undertook to bring them into court by service of summons and complaint upon the commissioner of motor vehicles of this state. The complaint purports to justify that form of service under chapter 232, p. 517 of the Pamph. Laws of 1924, and its amendments and supplements, particularly chapter 232, p. 441 of the Pamph. Laws of 1927 (Comp. St. Supp. § 135—93). However, as the legality of service depends upon the statute and not upon the allegations of the complaint in this respect, we assume, as indeed the plaintiff admits, that the character of service resorted to could have its justification only in chapter 69, p. 295, of the Pamph. Laws of 1930 (Comp. St. Supp. § 135—96a(l), which provides that: "Any chauffeur, operator or owner of any motor vehicle, not licensed under the laws of the State of New Jersey providing for the registration and licensing of motor vehicles, who shall accept the privilege extended to nonresident chauffeurs, operators and owners by law of driving such a motor vehicle or of having the...