Concilio, J.c.c. (temporarily assigned).
[47 NJSuper Page 450] Bruno W. Betz, administrator ad prosequendum of the estate of Robert Ottman Betz, deceased, has begun an action against the Director of Motor Vehicles in the Department of Law and Public Safety of the State of New Jersey under N.J.S.A. 39:6-79, a section of the Unsatisfied Claim and Judgment Fund Law. Plaintiff alleges that on or about July 16, 1956, while the deceased, Robert Ottman Betz, was traveling on Route 15 in the Township of Sparta, County of Sussex
and State of New Jersey, in a general northerly direction, he was forced off the road by a vehicle whose identity and driver are unknown, going in a general southerly direction, which crossed on the decedent's side of the road and caused the decedent to strike an object. As a result of the negligence of the unknown driver, Robert Ottman Betz was fatally injured.
Decedent was a resident of the State of New York at the time of the accident. Plaintiff further alleges that he has filed an intention to file a claim pursuant to our statute and that the decedent was not covered by workman's compensation.
The defendant has moved to dismiss the action commenced by the plaintiff on the grounds that the complaint does not establish a cause of action against the defendant.
The sections of the Unsatisfied Claim and Judgment Fund Law dispositive of this motion are:
N.J.S.A. 39:6-62: "As Used in this act --
N. J.S.A. 39:6-78: "When the death of, or personal injury to, any person arises out of the ownership, maintenance or use of a motor vehicle in this State on or after April 1, 1955, but the identity of the motor vehicle and of the operator and owner thereof cannot be ascertained or it is established that the motor vehicle was at the time said accident occurred, in the possession of some person other than the owner without the owner's consent and that the identity of such person cannot be ascertained, any qualified person who would have a cause of action against the operator or owner or both in respect to such death or personal injury for a sum in excess of $200.00 exclusive of interest and costs, may, bring an action therefor against the director in any court of competent jurisdiction, but no judgment against the director shall be entered in such an action unless the court is satisfied, upon the hearing of the action, that --
(a) The claimant has complied with the requirements of section 5,
(b) The claimant is not a person covered with respect to such injury or death by any workmen's compensation law, or the personal representative of such a person,
(c) The claimant was not at the time of the accident operating or riding in an uninsured motor vehicle owned by him or his
spouse, parent or child, and was not operating a motor vehicle in violation of an order of ...