Decided: May 18, 1940.
HERBERT WEISS, APPELLANT,
SHAPIRO CANDY MANUFACTURING COMPANY, A CORPORATION OF NEW YORK, RESPONDENT
On appeal from the Passaic Common Pleas.
For the appellant, Louis Santorf.
For the respondent, Collins & Corbin.
Before Brogan, Chief Justice, and Justices Parker and Perskie.
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The opinion of the court was delivered by
PARKER, J. Defendant is described in the summons and complaint as a corporation of New York. The question before the Passaic Pleas was whether defendant had been legally served with the summons and complaint in this cause. The Pleas held to the contrary, and this holding is before us on plaintiff's appeal.
For the defendant it is first objected that the order setting aside the service is not a final judgment, and hence that appeal does not lie. But we consider that it had all the elements of finality, inasmuch as the case shows that the person on whom the service was made was a traveling salesman residing in Brooklyn, with no place of business in this state, and consequently
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not within the language of the first paragraph of R.S. 2:26-44. The mixed question of law and fact which was before the Pleas for decision was whether this salesman was a "servant of the corporation within this state and acting in the discharge of his duties." If not, that is the end of the case, as it is not intimated that there is any other representative in this state on whom process may be served. The order is therefore a finality, and appeal lies. Bickel v. Pennsylvania Steel Co., 123 Md. 226; 91 A. 136. We have held to the same effect in cases of attachment. Hanford v. Duchastel, 87 N.J.L. 205; Jaudel v. Schoelzke, 95 Id. 171; Burleigh v. Sartain, 114 Id. 151, 153. See, also, Sweeney v. Miner, 88 Id. 361.
It remains, therefore, to decide whether the judge of the Common Pleas erred in setting aside the service; and we think that he did err. His decision followed as a precedent the case of Jaeger v. Breslow Brothers, 9 N.J. Mis. R. 1069. But an important and determinative feature of that case was that the salesman was authorized only to take orders, and the acceptance or rejection of those orders vested with the home office in New York; whereas in the case at bar the testimony of the salesman was that he had authority to accept orders and "finish the deal * * * in the store in New Jersey." The case is not within the ruling in Hoffman v. Carter, 117 N.J.L. 205; affirmed in 118 Id. 379, but rather within that in Giovannini v. Hartford, &c., Co., 120 Id. 580.
The rule or order setting aside the service of process is reversed, and the cause remanded for further proceedings therein.