Eastwood, Goldmann and Francis. The opinion of the court was delivered by Goldmann, J.A.D.
Defendant Apgar appeals from a final judgment in plaintiffs' favor entered in the Law Division of this court on February 9, 1952, and also from the order of the Law Division entered March 7, 1952 dismissing his motion to vacate and set aside the judgment as void.
Plaintiff Marguerite B. Loranger sued to recover for injuries suffered when she fell into the unguarded cellar door opening of a building owned by Apgar and in the possession of defendants Alban and Lewis, tenants under a lease from Apgar. Her husband sued per quod. Apgar was served June 1, 1951. He delivered the summons and complaint to the tenants because they had by their lease agreed to provide public liability insurance coverage for the demised premises. They gave the papers to their insurance agent and he, in turn, mailed them to the insurance carrier on June 12, 1952. The next day Sanderson & Engel, Esqs. served plaintiffs' attorney with the answer of the "defendants," the pleading being signed by them as "attorney for defendants." The same firm prepared and served interrogatories on plaintiffs' attorney on June 22, answers being demanded on behalf of the "defendants," without limitation or further description of that term. Alban and Lewis were respectively served on July 2 and 3, 1951.
The pretrial conference was held January 21, 1952 and resulted in an order which recited:
"* * * no answer has been filed on his [Apgar's] behalf; that while the answer filed herein appears to be on behalf of all defendants it was intended to be filed only on behalf of the defendants Alban and Lewis. It is thereby stipulated that the within action insofar as Marty Alban and Bernard F. Lewis, individually and as copartners trading as Alban-Lewis, be and the same is hereby discontinued, without prejudice to either the plaintiff or these defendants and since it appears that the defendant Jack W. Apgar has not filed an answer nor taken any other action herein judgment interlocutory and proof of damages will be entered and submitted by the plaintiff on February 6, 1952.
It is further stipulated that the answer filed herein insofar as it includes Jack W. Apgar be and the same is hereby amended to exclude said Jack W. Apgar."
The order was signed by plaintiffs' attorney and by Sanderson & Engel, below whose name appears "Attorneys for Defendants, Alban & Lewis, ind. and t/a co-partners, Alban-Lewis."
There was a jury trial on February 7, 1952 to assess damages. The record shows there was no appearance for defendants. The jury returned a verdict of $500 for each of the plaintiffs "against defendants," and the judgment entered the same day was against all the defendants in the amounts indicated. Just how it came about that the verdict and judgment were against all the defendants despite the pretrial order stipulation that the action was being discontinued without prejudice as to Alban and Lewis, is not explained.
On the day judgment was entered, plaintiffs' attorney wrote Apgar advising him of the entry of judgment and requesting payment. A second letter was sent February 13, 1952. Two days later Apgar served notice of motion to vacate and set aside the judgment as void. Attached to the notice was his affidavit in support of the motion in which Apgar states that when he gave the summons and complaint to his tenants they said they would turn them over to their insurance agent; that he learned of the judgment for the
first time when he received the February 7 letter of plaintiffs' attorney, and that up to that time he was "completely unaware that my interest was not being protected." The affidavit further states that Apgar has a "meritorious and sufficient" defense to the action and never intended to allow judgment by default to be entered against him. The Law Division judge denied the motion to vacate by order entered on March 7, 1952. This appeal followed.
In analyzing what happened in this case, not the least strange of the attendant circumstances is the pretrial conference and order. It is impossible to reconstruct just what happened at the pretrial, for all we have available is the argument on the motion to vacate, held before the same judge who conducted the pretrial conference. Plaintiffs' attorney gives his version of what was said at that time, but we do not have Sanderson & Engel's version ...