Matthews, J.c.c. (temporarily assigned).
Defendant James Cannella moves to set aside service of process made upon him through the Director of the Division of Motor Vehicles, on the ground that he did not cease to become a resident of New Jersey, as required by N.J.S.A. 39:7-2.1 for such substituted service.
The facts surrounding service through the Director are as follows:
On or about April 13, 1958, Cannella, while driving his motor vehicle, was involved in a collision with a railroad train owned and operated by defendant, Erie-Lackawanna Railroad Company, at a grade crossing, maintained by defendant railroad on Monroe Street, in Garfield, New Jersey.
On December 1, 1960, a copy of the summons and complaint in the within action, instituted by passengers in the motor vehicle operated by Cannella, were allegedly served on him by leaving a copy of same with Anna Cannella, his mother, "at his usual place of abode," 346 Main Avenue, Wallington, New Jersey. At the time that said service was made, Cannella was, in fact, with the armed forces of the United States, stationed in the Republic of West Germany.
Cannella moved to have this process set aside as null and void, which motion was granted for the reasons set
forth in my letter opinion of March 2, 1961. Thereafter, plaintiffs attempted to effect service on Cannella through the Director of the Division of Motor Vehicles pursuant to R.S. 39:7-1 et seq. Defendant now moves to have this process set aside.
N.J.S.A. 39:7-2.1 makes the Director of the Division of Motor Vehicles the agent for the acceptance of process in any civil action against any resident of New Jersey who drives or causes to be driven a motor vehicle on any public highway of New Jersey which is involved in an accident or collision in this State, "if, and in case, such person shall cease to be a resident of this State and service of such process upon him within this State cannot be made by reason of his nonresidence."
Defendant contends that his absence from New Jersey due to his being stationed with the U.S. Army in West Germany is not a cessation of residence as required by N.J.S.A. 39:7-2.1. In support of this contention he cites Evans v. Brooks , 93 Ga. App. 352, 91 S.E. 2 d 799 (Ct. App. 1956) and Hart v. Queen City Coach Co. , 241 N.C. 389, 85 S.E. 2 d 319 (Sup. Ct. 1955) which are cases holding that servicemen, though stationed within a State, are non-residents, and, therefore, susceptible of service through the Motor Vehicle Department.
The issue as to whether a serviceman attains residency within this State merely by being stationed here is not before this court. In this regard, however, it should be noted that Art. 2, Par. 5 of the New Jersey Constitution provides:
"5. No person in the military, naval or marine service of the United States shall be considered a resident of this State by being stationed in any garrison, barrack, or military or naval place or station within this State."
Defendant also cites Foster v. Holt , 237 N.C. 495, 75 S.E. 2 d 319 (Sup. Ct. 1953). The trial court in that case held that ...