Hetfield, Mariano and Hughes. The opinion of the court was delivered by Hughes, J.s.c. (temporarily assigned).
This appeal is taken from a judgment of dismissal of a cross-claim of the defendant and cross-claimant-appellant, Aetna Freight Lines, Inc., granted on the ground that the court lacked personal jurisdiction of the defendants-respondents on the cross-claim, Michael J. Casciglio and Raymond Greco. The sequence leading to such dismissal was as follows:
On October 29, 1951 a vehicle owned by persons trading as B & D Trucking Company and driven by one Veltri was struck in the rear, on a New Jersey highway, by a truck owned by Casciglio and operated by Greco. The B & D Trucking Company and Veltri instituted suit in the Superior Court, Law Division, against Casciglio and Greco and served these non-resident parties through the Director of the Division of Motor Vehicles under the statute, N.J.S.A. 39:7-2. Later the plaintiffs filed an amended complaint against Casciglio and Greco and added Aetna as a party defendant on the basis that it, Aetna, was at the time of the accident a lessee of the truck of Casciglio which was operated in its behalf by Greco, and hence was responsible also for their negligence. The theory underlying such claim was that the trip involved was being made in interstate commerce and apparently under Aetna's franchise certificate of the Interstate
Commerce Commission. Cf. Trautman v. Higbie , 10 N.J. 239 (1952). In any case, the liability theory as to Aetna is not presently before us for, as will appear, judgment was later entered against Aetna, Casciglio and Greco. Before any pretrial conference Aetna filed a cross-claim against Casciglio and Greco for all sums that might be adjudged against it, on the simple allegations that Casciglio and Greco had been under a leasing agreement with Aetna to haul freight on its behalf at the time of the accident involved and that Casciglio and Greco were negligent. Pretrial conference was then held on January 22, 1954 and at the outset the parties agreed and the court ordered that the cross-claim of Aetna against Casciglio and Greco should be severed and tried separately from the main case of the plaintiffs against the said three defendants. Although the pretrial conference was thus limited to consideration of the original or main case, the court recognized that a cross-claim had been filed by Aetna against Greco and Casciglio and had not been answered and leave was given them to answer. Thereafter Casciglio and Greco joined issue on the cross-claim by a general denial, with a specific denial of liability to Aetna, but did not raise any jurisdictional point as to service of the cross-claim upon them, which had been accomplished by registered mail on the then attorney for such cross-claim defendants. The matter of the cross-claim remained in this status until after the trial of the main case, which resulted in a verdict of some $1,780 for plaintiffs against Casciglio, Greco and Aetna. The cross-claim then came on for pretrial conference on December 7, 1954. It was then for the first time that Casciglio and Greco pointed out that they had been served in the main action through the Director of Motor Vehicles and were thus before the court; that the essence of the cross-claim against them by Aetna charged them with responsibilities springing from the contract relationship brought about by the leasing agreement and its performance.
At this pretrial conference, after its cross-claim against Casciglio and Greco had been described as alleging that they were under a leasing agreement with Aetna to haul freight on
its behalf, and were negligent, Aetna set forth its factual contention as follows:
"The basis of the cross-claim against Casciglio is a leasing agreement, manifest No. S-2285, dated Oct. 26, 1951, * * *.
The basis of the cross-claim against deft. Greco is that he is primarily liable and Aetna Freight Lines is only liable secondarily."
On the jurisdictional point this was the factual contention at such pretrial conference of Casciglio and Greco:
"These defendants also contend that the court lacks jurisdiction because process over them in the original suit was obtained through the Commissioner of Motor Vehicles, and since this suit is on a leasing agreement, that these defendants could not be served with the cross-claim under the principles set ...