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X-L Liquors Inc. v. Taylor

Decided: February 5, 1954.

X-L LIQUORS, INC., A CORPORATION OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FRED C. TAYLOR, CLARENCE W. TAYLOR, GREYTON H. TAYLOR, FLORA T. KEELER AND LUCY T. ZIMMER, INDIVIDUALLY AND TRADING AS THE TAYLOR WINE COMPANY, DEFENDANTS-APPELLANTS



Eastwood, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D.

Jayne

The defendants, all residents of the State of New York and engaged in business as partners under the name of The Taylor Wine Company with their warehouse in Brooklyn, New York, addressed an application on May 20, 1952 to the Division of Alcoholic Beverage Control of this State for the issuance to them of a Class B license to vend wine at wholesale within this State.

Among the interrogatories propounded to the applicants and the information solicited in the conventional form utilized in such instances is No. 15, which reads:

"15. Applicants who do not maintain licensed premises in New Jersey shall designate a duly authorized agent within this State upon whom service of process may be made: Name of authorized agent . . . Address . . ."

The defendants designated one Bernard Best of 428 Leslie Street, Newark 8, New Jersey, as their agent authorized for the stated purpose. The license was issued in pursuance of the application.

Subsequently the plaintiff instituted the present action in the Law Division of this court against the defendants individually and as partners trading under the name of The Taylor Wine Company. It would have been desirable to have included in the statement in lieu of record a copy of the complaint or some precise information concerning the nature and subject matter of the alleged cause of action.

However, a summons was issued and dispatched to the Sheriff of Essex County for service upon the designated agent of the partnership. We quote verbatim et literatim the return of the special deputy sheriff endorsed on the writ:

"I served the within Summons on the 15th day of April, A.D. 1953, upon The Taylor Wine Company (Bernard Best, authorized representative) within named defendant, at Bernard Best's usual place of abode -- 428 Leslie Street, Newark, N.J., by leaving a copy thereof, together with a copy of the Complaint, with a competent female member of his family of the age of fourteen years or over, then residing therein, Gloria Best, wife of Bernard Best."

It is noticeable that the word "delivering" is effaced and the word "leaving" substituted, and that only one copy of the complaint was supplied. It is equally conspicuous that the copy of the writ and of the complaint were left with the wife of the agent.

An ensuing motion to nullify the service of the writ was denied. The order of denial adjudicates (1) that the Division of Alcoholic Beverage Control had the authority to require the defendants to designate a resident agent, (2) that the designation of the agent made available the service of process upon the agent in actions instituted in this State against the defendants, and (3) that the service in the manner indicated by the return constituted lawful personal service of the writ and a copy of the complaint upon each of the five defendants individually and as partners.

In our review of the order pursuant to the present appeal we are disinclined to deliver judgment upon the legitimacy of the power of the Director of the Division of Alcoholic Beverage Control to require the designation by applicants of a resident agent in such circumstances and the limitations of the agent's authority so appointed. That issue would manifestly implicate the public interest and necessitate the observance of the provisions of R.R. 4:37-2.

Rather do we concentrate our attention in contrasting the manner of service in the case with the provisions of R.R. 4:4-4. It is expedient to reproduce here the ...


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