Leonard, J.c.c. (temporarily assigned).
This is a motion by a third-party defendant to strike a third-party complaint filed against it and for the entry of a summary judgment of dismissal thereon.
The admitted facts are as follows:
The original plaintiffs, Edith and Samuel Cooper (hereinafter referred to as plaintiffs) instituted a suit in the Superior Court, Law Division, against Philadelphia Dairy Products Co., Inc., a corporation (hereinafter referred to as defendant). The plaintiffs allege in said action that the defendant committed certain negligence in respect to a sidewalk and maintained a nuisance thereon which was the proximate cause of injury to the plaintiffs on January 30, 1952. This action was instituted in October 1953. Thereafter, defendant obtained an order dated April 21, 1954 granting it leave to serve upon Bethmar Realty Co., a corporation (hereinafter
referred to as the third-party defendant) and Charles W. and Louisa Henderson a summons and third-party complaint. Pursuant thereto said complaint was served upon third-party defendant and in it defendant seeks contribution from third-party defendant on the theory that defendant and third-party defendant were joint tort-feasors.
Thus, it appears that the order granting leave to the defendant to serve a third-party complaint was not entered until more than two years from the original accident and thus said third-party complaint was likewise not served upon third-party defendant until more than two years thereafter.
Third-party defendant, upon being served with said third-party complaint, filed this motion and alleges as the basis thereof that since more than two years had expired, the statute of limitations has run upon the cause of action alleged against third-party defendant and, therefore, said third-party defendant was not a joint tort-feasor with the defendant at the time it was made a party to said suit.
Counsel for third-party defendant argues that the Joint Tortfeasor's Contribution Act must be strictly construed and that expressly provides for contribution only by those persons who were liable to the original plaintiffs at the time that the original defendant paid the judgment rendered against it and in favor of said plaintiffs. Counsel further argues that this contention is so because, by reason of the expiration of the two-year period of the statute of limitations, the original plaintiff could not directly sue the third-party defendant at the time defendant served third-party complaint upon it.
The sole question is whether or not the expiration of this two-year period of the statute of limitations is a bar to the service of said third-party complaint.
Defendant seeks contribution from third-party defendant by authority of the "Joint Tortfeasors Contribution Law." N.J.S.A. 2 A:53 A -1 to 2 A:53 A -5.
The reading of said law discloses that there is not set forth therein any limitation upon the period during which one joint tortfeasor must institute his action against the other. In other words, there is no statute of limitation therein.
There have been no cases determined in this State since passage of this law answering the question involved herein. However, it has been answered by decisions in the federal courts and in the courts of our sister states.
The general rule seems to be that where the original defendant alleges facts showing that the additional defendant is liable over to him, joinder is generally held to be proper, and the fact that the statute of limitations will bar the plaintiff from a direct recovery against the additional defendant has no effect on the defendant's right to enforce his claim of contribution or indemnity, since the cause of action owned by the plaintiff is distinct from the cause of action arising out of the duty of the additional defendant to indemnify the defendant. 8 A.L.R. 2 d 139, § 70. In the case of Adam v. Vacquier , 48 F. Supp. 275 (D.C. Pa. 1942), where the ground of bringing in a third-party defendant was that he was liable over to the original defendant for contribution, it was held that although the right of action of the plaintiff, who was injured in an automobile accident, against the third-party defendant was barred by the statute of limitations of Pennsylvania which required that the action be brought within two years from the time of the injury, the statute did not apply to bar the third-party complaint filed by the original defendant against the third-party defendant, the court taking the view that the statute does not apply to an action over by a defendant to recover from a person who may be liable to him for all or part of the plaintiff's claim. The court said:
"Surely no plaintiff has the right of election of a defendant in an automobile-accident case, where there are, or may be, several parties at fault. The rights and liabilities of the parties are fixed at the moment of the accident. Surely those rights and liabilities may not be altered by a party who merely brings on the record in the first instance only one of the parties who may be liable." (Italics supplied)
The case of Schott v. Colonial Baking Co. , 111 F. Supp. 13 (D.C. Ark. 1953), is informative. In it plaintiff filed a complaint against the ...