Seitz v. Fed. Cleaners & Dyers Inc.

• Decision Date: 23 February 1949
• Docket Number: No. A-30.,A-30.
• Citation: 64 A.2d 85
• Parties: SEITZ et al. v. FEDERAL CLEANERS & DYERS, Inc.
• Court: New Jersey Superior Court

64 A.2d 85

SEITZ et al.

v.FEDERAL CLEANERS & DYERS, Inc.

No. A-30.

Superior Court of New JerseyAppellate Division, Part B.

Feb. 23, 1949.

Appeal from Second Judicial District Court, Bergen County.

Proceeding by George L. Seitz and others against the Federal Cleaners & Dyers, Inc., to recover possession of leased premises. Judgment for plaintiffs, and defendant appeals.

Affirmed.

Before McGEEHAN, Senior Judge, and DONGES and COLIE, JJ.

Abraham M. Herman, of Orange, for defendant-appellant.

Ralph W. Chandless and Chandless, Weller, Kramer & Frank, all of Hackensack, for plaintiffs-respondents.

McGEEHAN, Senior Judge.

This case is before us on writ of certiorari allowed by the former Supreme Court to review a judgment for possession in landlord and tenant proceedings in the District Court of the Second Judicial District of Bergen County.

The defendant, on June 17, 1948, before the return day of the summons, filed a ‘special appearance’ objecting to the jurisdiction of the court on two grounds: (1) that service was made upon an employee of the defendant corporation who is not an agent or officer of the corporation, and it is thereby invalid and not legal service upon the corporation; and (2) the affidavit as filed is defective in that it is based on hearsay, does not allege sufficient facts, and merely states legal conclusions. The motion to dismiss was denied June 21, 1948, and trial date set for June 24, 1948. The defendant's attorney appeared at the trial but took no part in the proceedings. Judgment for possession followed.

The ‘special appearance’ of the defendant coupled, in the alternative, an attack on the jurisdiction of the court over the person, with an attack which amounted to a motion to strike out the affidavit. The latter attack, if successful, would terminate the whole proceeding. While a special appearance may be made to attack the jurisdiction of the court over the person, the joining therewith of the attack upon the affidavit made the appearance a general appearance, the effect of which is to waive all objections to the jurisdiction of the court over the person. Terminal Co. v. Stoicos, Cir.Ct.1946, 46 A.2d 658, 24 N.J.Misc. 127. But note changes effected in proceedings after September 15, 1948, by Rules 3:12-2 and 4:2-2(c).

It is argued that the allegations of the affidavit are insufficient to prove the assignment of the reversionary estate to the claimant, citing Weller v. Kelly, Sup.1947, 136 N.J.L. 281, 282, 55 A.2d 55, 57, in which the affidavit was held to be defective. In that case, it merely alleged that ‘On or about December 20th, 1945,’ he ‘purchased the said property for use and occupancy by’ himself and his ‘immediate family’ and this was held insufficient because the affidavit was not made as lessor but as an assignee of the lessor, and no fact was alleged to show the assignment of the reversionary interest. Here, it alleges ‘on March 31st, 194...