This is a motion for entry of default against defendant Benjamin Oremland, who was allegedly served with a summons and complaint on August 30, 1952, at No. 213 North Chelsea Avenue, Atlantic City, New Jersey. The question is whether service was ever made on said defendant as required by R.R. 4:4-4.
The facts in connection herewith are as follows: The defendant Benjamin Oremland, a member of the bar of the State of New York, and his wife Pearl Oremland, were two of the named defendants in the above entitled matter. Plaintiffs forwarded their summons and complaint to the
Sheriff of Atlantic County for service upon the said Oremlands some time prior to August 30, 1952, and George C. Elmer, Under-Sheriff of Atlantic County, was deputized by the said sheriff to make service upon the said Oremlands. On that date he proceeded to No. 213 North Chelsea Avenue, Atlantic City, New Jersey. In connection with his conduct thereafter, he testified as follows:
"A. I received the papers from our office in the usual manner and I proceeded to 213 North Chelsea Avenue at 9:30 a.m. I knocked on the door and eventually it was answered by a lady who is either a nurse for the senior Mr. Lewis, I believe, or a maid in the house, and I asked to see Mr. and Mrs. Oremland. She advised me they were upstairs in bed. I said that I would wait. I had a lot of time and I would wait. Eventually after hearing some talking upstairs Mrs. Oremland came down. I gave her her service and I told her I also had one for her husband and would she take that. She said no, she wouldn't have anything to do with that and I said, 'Well, I will go upstairs.' It was Saturday and I didn't want to go back. She said, 'No, I won't permit that.' 'What time can I give the papers to him?' She said 'Well, it is early,' and I have a lot of business about coming so early and so forth in the morning and disturbing them. 'However,' she said, 'come back at eleven o'clock,' and that he would be up and I could serve him then.
I returned at 10 minutes of eleven and was informed by the same lady, the maid or whatever she was, that Oremlands had left for New York. I asked her did she know when they would be back and she said she didn't know anything at all about it. I returned later in the afternoon and she didn't even want to come to the door, wouldn't give me any satisfaction at all."
He did not thereafter attempt any further service upon the said Benjamin Oremland at said address by leaving the summons and a copy of the complaint with some competent member of his family of the age of 14 years or over then residing therein. No return of service has ever been made by the said under-sheriff. Proof of service was attempted to be made by the oral testimony of the said George Elmer, a portion of which has been above adverted to.
There is no proof that No. 213 North Chelsea Avenue, Atlantic City, New Jersey, was the "dwelling house or usual place of abode" of the defendant. The proof merely discloses that Pearl Oremland, the wife of Benjamin Oremland,
upon the date in question admitted that he was "upstairs in bed." The under-sheriff performed no physical acts whatsoever in attempting to serve either the defendant himself or his wife or other competent member of his family of the age of 14 years or over at No. 213 North Chelsea Avenue, Atlantic City, New Jersey.
Plaintiffs conceive that under the facts here present that the defendant attempted to evade service and that, therefore, the acts of the under-sheriff were sufficient to effectuate service upon him.
Plaintiffs admit at the outset that actual physical personal service was never made upon the defendant. They seek to read into the refusal of defendant's wife to disturb him, and the conversation with her, a duty upon the defendant to be present at No. 213 North Chelsea Avenue, Atlantic City, New Jersey, at 11 o'clock in the morning of August 30, 1952. Plaintiffs primarily base this conclusion upon the cases of Walkoczy v. Bowers, N.J. Sup. , 146 A. 34 (Sup. Ct. 1929) and Pickford v. ...