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Clare v. Fliegel

Decided: April 6, 1962.

H. GLENN CLARE AND HELEN A. CLARE, PLAINTIFFS,
v.
HERBERT V. FLIEGEL, RUTH FLIEGEL AND LILLIAN B. CARLIN, EXECUTRIX OF THE ESTATE OF FRANCIS M. CARLIN, JR., DECEASED, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, DEFENDANTS



On motion to quash service and to dismiss order previously entered.

Cafiero, J.s.c.

Cafiero

Plaintiffs Clare filed suit in the Cape May County Court on August 10, 1961 alleging that the defendants Fliegel and Carlin negligently caused an accident resulting in injury and damage to the plaintiffs. The accident is alleged to have occurred on September 3, 1959.

Although the plaintiffs originally joined the defendants Fliegel and Carlin, only the Carlins were actually served with the original summons and complaint.

The Carlins answered denying the allegations of negligence, asserting that plaintiffs and defendants Fliegel were negligent; and cross-claimed against Fliegels as joint tortfeasors responsible for all or a part of the injuries and damages in contribution.

The answer and cross-claim, however, were not served upon the codefendants Fliegel, and not until the pretrial conference was it first learned that the Fliegels had never been served with any process.

The court, apparently exercising its discretion under R.R. 4:4-1 and R.R. 4:42-2(a), issued an order directing that the complaint be served upon the defendants Fliegel and that a copy of the answer and cross-claim for contribution be served upon the defendants Fliegel.

Because defendants Fliegel were nonresidents, the summons with a copy of the complaint, answer, and cross-claim, together with the aforesaid court order was served upon the Director of Motor Vehicles pursuant to N.J.S.A. 39:7-2 et seq.

Defendants Fliegel now move to quash the aforesaid substituted service of process upon the Director of Motor Vehicles on the ground that cross-claim for contribution is not a "civil action or proceeding * * * arising out of or by reason of any accident or collision" occurring within this State, and therefore not within the statutory jurisdiction conferred by N.J.S.A. 39:7-2. They move to dismiss the aforesaid order on the ground that the court order was improper and beyond the jurisdiction of the court issuing it.

I.

The legality of service of a cross-claim for contribution against a joint tortfeasor who is also a nonresident, through the Director of Motor Vehicles pursuant to N.J.S.A. 39:7-2 et seq. has never been questioned or decided in New Jersey. No reported case reflects any such controversy.

Defendants Fliegel rely upon Whalen v. Young , 15 N.J. 321 (1954), and Pennsylvania Greyhound Lines v. Rosenthal , 14 N.J. 372 (1954), in support of their argument that a claim of contribution, being a contractual action, is not within the purview of the statutory extraterritorial jurisdiction conferred on the courts of New Jersey by N.J.S.A. 39:7-2;

in other words, that the claim for contribution, being contractual in nature, does not arise out of or by reason of any ...


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