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Smith v. Thermo-Fax Corp.

Decided: November 25, 1958.


Scherer, J.s.c.


Defendant moves to quash service of the summons in the above matter on the ground that "there is no such defendant as served." Defendant, in its affidavit attached to the notice of motion, states that its correct corporate name is Thermo-Fax Sales Incorporated, and that it is a corporation of the State of Delaware authorized to transact business in the State of New Jersey. It further alleges that so far as it is aware there is no such corporation as Thermo-Fax Corporation. Subsequent to the service of the notice of motion plaintiffs filed and served an amendment to the complaint, correcting the name of the defendant to Thermo-Fax Sales Incorporated.

R.R. 4:15-1 provides that a party may amend as a matter of course at any time before a responsive pleading is served. Otherwise, he may amend only by leave of court or by written consent of the adverse party. The same rule provides that leave to amend shall be freely given "when justice so requires."

At the argument the defendant stated that under ordinary circumstances consent to the amendment would have been given but, in view of the fact that the statute of limitations has run against the plaintiffs' claim, it would not consent.

The cause of action is founded upon negligence. The female plaintiff alleges in the complaint that she suffered a serious rash and skin condition as a result of the use of a chemically treated Thermo-Fax paper used in a copying machine known as a Thermo-Fax copying machine. She used this paper and machine at her place of business. The male plaintiff sues per quod. The complaint further alleges that the defendant is engaged in the business of manufacturing and selling Thermo-Fax copying machines and chemically treated paper known as Thermo-Fax paper, and that it was under a duty to warn persons using the chemically treated paper of the risks inherent therein, which it failed to do. The injury is alleged to have occurred on or about October 26, 1956.

The sheriff's return shows that service of the summons and complaint was made on September 25, 1958 on Thermo-fax Corp., a corporation, by serving "John A. O'Hea, Managing Agent," at its usual place of business, 31 Lincoln Park, Newark, N.J. The affidavit filed by the defendant in support of its motion is made by John A. O'Hea, who says that he is branch sales manager for Thermo-Fax Sales Incorporated of 33 Lincoln Park, Newark, N.J. Quashing service of the summons, therefore, will result in the plaintiffs' cause of action being barred by the statute of limitations, which in this case is two years. N.J.S. 2 A:14-2.

Had the notice of motion to quash been served promptly after the receipt of the summons and complaint by the defendant, the plaintiffs would have been warned about their difficulty in sufficient time to amend the summons and complaint and reissue the same before the statute of limitations had run. The affidavit attached to the notice of motion is dated October 22, 1958. It was served by certified mail upon the attorney for the plaintiffs, and the mailing took place on October 27, 1958 (one day after the statute of

limitations had run). Both of these dates are more than 20 days after the service of the summons. The motion was made returnable November 7, 1958.

The affidavit filed on behalf of the plaintiffs sets forth the facts regarding the inadvertent use of the incorrect name of the defendant and states that the defendant intended to be sued was Thermo-Fax Sales Incorporated, and that immediately upon being apprised of the error by receiving the notice of motion an amendment to the complaint was served and filed on October 31, 1958.

There is considerable doubt as to whether the defendant's motion can properly be brought, since more than 20 days had elapsed after service of the summons before the notice of motion was served and filed. R.R. 4:12-1(a) requires a defendant to serve his answer within 20 days after service upon him of the summons and complaint. While R.R. 4-12-2(c) and (d) provide that defenses of insufficiency of process and insufficient service of process may be made by motion, it is implicit in this rule that such steps must be taken within the 20-day period allowed for answering, unless the time is properly extended. See Galler v. Slurzberg , 22 N.J. Super. 477 (App. Div. 1952), where the court, referring to Rule 3:12-2 (the predecessor to R.R. 4:12-2), said that objection as to service of process may be made in an answer or by motion.

It needs no citation of authority for the proposition that amendments to pleadings are allowed with great liberality. See cases collected under R.R. 4:15, Schnitzer & Wildstein, New Jersey Rules Service , A IV-361 et seq. Whether a notice of motion constitutes an answering pleading, thus requiring the plaintiff to secure leave of court or consent of the defendant before he can amend his complaint, is doubtful. Whalen v. Young , 28 N.J. Super. 543 (Law ...

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