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ARCO Welding & Machine Works Inc. v. Terry Contracting

Decided: April 22, 1957.

ARCO WELDING & MACHINE WORKS, INC., A NEW JERSEY CORPORATION, PLAINTIFF,
v.
TERRY CONTRACTING INC., A NEW YORK CORPORATION, DEFENDANT



Masucci, J.c.c. (temporarily assigned).

Masucci

[44 NJSuper Page 587] Both of the above suits involve the same cause of action. The defendant

moves to set aside the service of summons and complaint in each.

In the first suit service was made on January 18, 1957, by leaving a copy of the summons and complaint at the registered office of Terry Contracting Inc., 24 Commerce Street, Newark, New Jersey with Della Levin, who, it is claimed, was the person in charge. Admittedly, the registered agent of the defendant company was Harry Levin, who died September 23, 1956.

The defendant company is a New York corporation, which had been duly authorized to do business in New Jersey. However, at the time of the service in question, the defendant company had not appointed any registered agent in place of Harry Levin and had no other designated registered agent.

N.J.S.A. 14:4-5 provides that:

"When the principal office of a * * * foreign corporation authorized to transact business in this state shall be changed, * * * or when the agent shall die * * *, the board of directors shall forthwith file in the office of the secretary of state a certificate, under the seal of the corporation and the hand of its president or secretary, setting forth * * * the name of the new agent upon whom process may be served."

It then provides for a penalty or revocation of authority to do business upon failure to comply with the statutory requirements within 30 days after a change of office or death of the registered agent.

There is no provision permitting the service to be made on a person other than the designated registered agent. In the instant case there was no registered agent at the time of service. The death of Mr. Levin revoked his agency relationship with the defendant company for the purpose of service of process. The service was, therefore, void and will be set aside and vacated.

The plaintiff, probably anticipating that the service would be vacated, instituted a second suit, although this was not necessary because new service might have been made in the original suit. This time service was made upon the Secretary of State of New Jersey.

The plaintiff now invokes N.J.S. 2 A:15-26 to sustain the service. The facts and circumstances, except for the service of the summons and complaint, are the same as stated in the first suit.

The cited section of the Corporation Act provides that service upon a foreign corporation authorized to do business in this State may be effected by serving the Secretary of State, when the agent designated for service of process has died or otherwise become disqualified, or ...


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