Fulop, J.c.c. (temporarily assigned).
This action for personal injuries resulting from an automobile accident was instituted against Antonio Iamurri and, in the alternative, against Ned J. Parsekian, Director of the Division of Motor Vehicles, under the hit and run sections of the Unsatisfied Claim and Judgment Fund Law (N.J.S.A. 39:6-61 et seq.; L. 1952, c. 174, as amended and supplemented). The actions were severed and plaintiff directed to proceed first against Iamurri. The correctness of this procedure is not now in issue.
The claim against Iamurri came on for trial before me on September 27, 1961. The plaintiff's attorney represented that his investigation led him to the conclusion that he could not prove Iamurri to have been the operator of the car. He produced Mr. and Mrs. Nash who testified that they could not identify the driver of the car that had caused the injuries and rested. Iamurri's attorney moved for dismissal of the action and the motion was granted.
Thereafter the Director moved for summary judgment in his favor. The grounds for this motion were stated to be:
1. That plaintiff has failed to make all reasonable efforts to ascertain the identity of the motor vehicle and the owner and operator of the motor vehicle which inflicted the injuries, as required by N.J.S.A. 39:6-78(e);
2. That plaintiff "has failed to prove that the motor vehicle involved 'was in the possession of some person other than the owner or his agent without the consent of the owner and the identity of the operator has not been established,'" under N.J.S.A. 39:6-79, and
3. That "plaintiff has failed to commence 'action against all such persons against whom the applicant might reasonably be considered as having a cause of action in respect to such damages and prosecuting every such action in good faith to judgment' as required by N.J.S.A. 39:6-70(b)(1)."
This motion was denied and the case held for trial on the fact issues.
The matter is now again presented by letter stipulations of counsel. Both counsel request the court to decide the matter as though at a trial without a jury upon the basis of the following papers:
(a) Transcript of proceedings in Nash v. Iamurri in this court, leading to a judgment of dismissal as to Iamurri;
(b) Transcript of proceedings in the Municipal Court of South Plainfield in State v. Iamurri;
(c) Copy of the blotter or report of the South Plainfield Police Department;
(d) Copy of the report of the State Bureau of Identification comparing paint on plaintiff's car with paint on Iamurri's car;
(e) Copy of letter dated January 4, 1960, from plaintiff's then attorney to the Unsatisfied Claim and Judgment Fund Board.
It is stipulated that these papers constitute all of the evidence on the question presented.
An examination of these papers reveals that on October 11, 1959 plaintiff and his wife attended a party at the Polish National Home in South Plainfield, given for employees of his employer. Anthony Iamurri, a coemployee, was at the same party. At about one o'clock in the morning, plaintiff and his wife left the party and went to his car which was parked on the street. Mrs. Nash entered and sat in the right front seat. Plaintiff was walking in the street to the left door of the car and was about to unlock the door when he was struck by the left front of an automobile which diagonally crossed the center of the street and pinned plaintiff against the side of his automobile. The automobile involved was described as a light green 1955 Chrysler-make car, with white or cream top, and the driver ...