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Finkel v. Cumberland Realty Co.

Decided: August 24, 1961.

JENNIE FINKEL, PLAINTIFF,
v.
CUMBERLAND REALTY COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, AND THE STATE OF NEW JERSEY, DEFENDANTS



Wick, J.s.c.

Wick

This matter comes before the court upon the motion of the defendant, Cumberland Realty Company, to set aside a judgment entered by default against it in favor of the plaintiff, Jennie Finkel.

On March 25, 1960 the plaintiff instituted this action in the Superior Court, Chancery Division, to quiet title to certain lands located in the Township of Pittsgrove, County of Salem. Both Cumberland Realty Company, a corporation of the State of New Jersey, and the State of New Jersey were joined as party defendants, alleging that they deny or dispute the plaintiff's title or hold some lien or encumbrance on the lands in question. In respect to the State of New Jersey, the complaint alleges that the State may have a lien on these lands by virtue of the fact the corporate charter of the defendant corporation was forfeited for nonpayment of corporate taxes for the years 1930, 1931 and 1932.

Subsequently, on May 11, 1960, after defaults had been entered against the defendants, a judgment in favor of the plaintiff was signed by this court. An amendment, not pertinent herein, to that judgment was made on September 26, 1960. Then on April 20, 1961, the defendant corporation obtained an order to show cause why the above-mentioned judgment should not be set aside.

In support of its motion, the defendant corporation by affidavit alleges improper service of process as well as fraud or misrepresentation as a basis of the relief sought.

Service of process upon the defendant corporation was not made in accordance with the usual corporate procedure as provided by R.R. 4:4-4(d), but was instead made through the office of the Secretary of State under N.J.S.A. 14:13-14 which provides:

"In any action or other legal proceeding commenced in any court of this State against a domestic or foreign corporation, or to which such corporation shall be a party defendant, where the charter of the corporation has heretofore expired or shall hereafter expire by its own limitation, or has heretofore been or shall hereafter be forfeited, dissolved or annulled by the Legislature or in any other manner, the corporation shall continue a body corporate for the purpose of defending the cause. Service of a summons or other process for appearance issued out of any court and other papers in the cause may be made upon the corporation by serving the same on such person as was, at the time of such expiration, forfeiture, dissolution or annulment, the president or secretary of the corporation, or the agent in charge of its principal office, or its designated registered agent for this State, personally, or by leaving the same at the dwelling house or usual place of abode of such president, secretary, agent in charge of said principal office or designated registered agent of the corporation. If service thereof cannot be made as hereinabove provided, then it may be made upon the corporation by serving the Secretary of State * * *"

The return of service reveals that the summons and complaint were served upon the defendant corporation "by leaving a copy thereof in the office of the Secretary of State of New Jersey, in the State House, Trenton, N.J., together with a fee of $3.00, with Robert Falcey, Chief Clerk in said office."

At the date of institution of this litigation, the charter of the defendant corporation had been forfeited for nonpayment of its franchise taxes, and its registered agent, one Nathaniel S. Greenwood, was deceased. The plaintiff contends she could not obtain any information as to either the names or addresses of any surviving directors or officers of the corporation; and, therefore, only by service upon the Secretary of State as provided by N.J.S.A. 14:13-14 could this action be brought against the defendant corporation.

However, in so making this service, the plaintiff did not file any affidavit showing inquiry and the inability to find either the corporate officers or the named registered agent. Although N.J.S.A. 14:13-14 does not expressly require that such an affidavit be filed, the defendant corporation contends that such a requirement is implicit in the terms of that statute. Although the court has been unable to find any precedent directly on this point, in Miklos v. Liberty Coach Co. , 48 N.J. Super. 591 (App. Div. 1958), involving an analogous situation of service upon a corporation by serving a servant of the corporation who was acting in discharge of his duties within the State as provided by R.R. 4:4-4(d), Judge Goldmann, at page 601, stated:

"* * * Good practice would indicate that before invoking this provision an affidavit be filed showing inquiry and inability to find the named corporate representative or office or place of business within this State. Schnitzer and Wildstein, New Jersey Rules Service , A IV-55."

As in N.J.S.A. 14:13-14, there is no express provision in R.R. 4:4-4(d) requiring that an affidavit of inquiry be filed. However, if "good practice" would require that such an affidavit be filed prior to service upon a servant of a corporation under R.R. 4:4-4(d), could one deny that such an affidavit should likewise be required prior to service upon the Secretary of State under N.J.S.A. 14:13-14.

The case of Andes v. Boyajian , 12 N.J. Super. 344 (Ch. Div. 1951), relied upon by the plaintiff, is distinguishable

from that sub judice. The Andes case merely holds that failure to file an affidavit of inquiry for the officers and registered agent of a corporation as a prerequisite to service of process upon the Secretary of State pursuant to N.J.S.A. 14:13-14 may not be the subject of a collateral attack in another proceeding. Herein the defendant ...


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