Vollbehr v. Ingram, A--224

• Citation: 22 N.J.Super. 249,92 A.2d 81
• Decision Date: 27 October 1952
• Docket Number: No. A--224,A--224
• Parties: VOLLBEHR v. INGRAM et al.
• Court: New Jersey Superior Court — Appellate Division

Page 249

22 N.J.Super. 249

92 A.2d 81

VOLLBEHR v. INGRAM et al.

No. A--224.

Superior Court of New Jersey

Appellate Division.

Argued Oct. 14, 1952.

Decided Oct. 27, 1952.

Mortimer Neuman, Jersey City, for plaintiff-appellant (Benjamin L. Walters, Jersey City, attorney).

Milton B. Conford, Newark, for defendants-respondents (Stein, Stern & Conford, Newark, attorneys).

Before Judges EASTWOOD, GOLDMANN and FRANCIS.

The opinion of the court was delivered by

FRANCIS, J.C.C. (temporarily assigned).

The plaintiff, a resident of the State of New York, instituted a stockholder's representative action against the four defendants, A. Maschmeijer, Jr., Inc., Sarah E. Ingram, Benjamin F. Knopp, and Chemical Industries, Inc. Mrs. Ingram and Knopp are residents of New York; A. Maschmeijer, Jr., Inc. is a New York corporation, authorized to do business in New Jersey; Chemical Industries, Inc. is a New Jersey corporation; both corporations have statutory agents in New Jersey upon whom service of process and be made.

Mrs. Ingram is an officer of both corporations, and on September 24, 1951 service of process as to her individually and as to the corporations was made by serving her in New Jersey at the Newark, New Jersey, plant of A. Maschmeijer, Jr., Inc. At the time of service a deputy sheriff handed her copies of the complaint in addition to the summonses. Examination of the complaint revealed that it was not verified. Rule 3:23--2 provides:

'In an action brought to enforce a secondary right on the part of one or more shareholders in an association, incorporated or unincorporated, because the association refuses to enforce rights which may properly be asserted by it, The complaint shall be verified by oath * * *.'

Thereafter and before an answer was filed defendants served a notice of motion returable October 11, 1951, directed to the validity of the complaint. This motion sought 'an order Dismissing the complaint filed herein for failure to state a claim upon which relief can be granted for the reason that the plaintiff has failed to verify by oath the allegations contained therein, in accordance with Rule 3:23--2.' Argument thereof was continued by agreement of counsel until October 26, 1951.

It appears from the affidavits in the record that a verification of the complaint was executed by the plaintiff prior to the service thereof, and that through inadvertence it was not attached to the complaint. The unverified complaint was filed September 24, 1951. Then after some abortive attempts to file the verification, it was finally recorded on October 5, 1951. On October 17, 1951 an amended complaint duly verified was filed by the plaintiff. The only change accomplished by the amendment was the addition of the verification.

On learning of the filing of the verification defendants served and filed another notice of motion returnable on the continued date of the first motion. This motion sought an order setting aside the service of summons and complaint on the grounds that Mrs. Ingram had been induced fraudulently to come into the jurisdiction for the purpose of effecting service of process upon her, and that the service...