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Essential Construction Co. v. Royal Concrete Fireproofers Inc.

Decided: June 24, 1964.

ESSENTIAL CONSTRUCTION CO., INC., AND HIMOUNT CONSTRUCTORS, LTD., A JOINT VENTURE, PLAINTIFFS-APPELLANTS,
v.
ROYAL CONCRETE FIREPROOFERS, INC., A CORPORATION OF NEW JERSEY, LIMBARDO CONTRACTING LTD., A CORPORATION OF NEW YORK, ANTONIO LIMBARDO, MARY LIMBARDO, LEO MANNO, AND SAULTABS, DEFENDANTS-RESPONDENTS



Conford, Freund and Sullivan. The opinion of the court was delivered by Conford, S.j.a.d.

Conford

This is an attachment action. The Superior Court, Law Division, entered an order quashing plaintiffs' attachment of New Jersey bank accounts of defendant Limbardo Contracting Ltd., a New York corporation ("Limbardo," hereinafter), levied pursuant to an order for attachment dated February 28, 1964. This court granted leave to appeal.

Other defendants are Royal Concrete Fireproofers, Inc., a New Jersey corporation ("Royal," hereinafter), and certain individual stockholders, officers and agents of Limbardo and Royal. Royal and Limbardo are said to be commonly owned and controlled. The complaint charges, in substance, that plaintiffs, constituting a joint venture, contracted with Royal for the latter to provide all concrete work for the construction of a library building in New York City at a stated guaranteed figure, but that Royal defaulted on the contract; that Royal and Limbardo, through common agents and employees, conspired to defraud plaintiffs by diverting labor and material on the library job site, for which plaintiffs had advanced moneys, to construction projects elsewhere wherein Limbardo alone was contractor.

On return of an order to show cause a judge of the Law Division quashed the writ of attachment on the basis of the

doctrine of forum non conveniens. That was not the ground for relief submitted by Limbardo below, nor does it defend the court's action on that basis on this appeal. Rather, it supports the action of the trial court primarily on the ground that this is a tort action, not the proper subject of an attachment against a foreign corporation, where, as it claims is here the case, valid service can be effected upon the corporation in this State.

Forum non conveniens was not an appropriate basis for the quashing of the writ. While the plaintiffs are New York corporations, they are authorized to do business in New Jersey and have offices here. As noted, Royal is a New Jersey corporation, and Limbardo, while a New York corporation, is owned and operated by persons who reside in New Jersey, and it has a New Jersey base of operations, as will be seen hereinafter. The factors which properly make for rejection by a court of an action on grounds of inconvenience to the parties, particularly the defendant, need not be here detailed. They are relatively rare. See Starr v. Berry , 25 N.J. 573, 584 (1958); Standard Surety & Casualty Co. of New York v. Caravel Industries Corp. , 128 N.J. Eq. 104, 105-106 (Ch. 1940). Such factors clearly do not obtain here.

We by-pass miscellaneous other contentions advanced by Limbardo to defeat this attachment to consider what we regard as its main and clearly dispositive argument -- that since this is a tort action insofar as Limbardo is concerned, no attachment herein can be levied against the defendant's property since it can be served with process in New Jersey.

Plaintiff rests its right to attachment against Limbardo upon N.J.S. 2A:26-2(a) which authorizes the remedy:

"Where the facts would entitle plaintiff to an order of arrest before judgment in a civil action; and in such cases the attachment may issue against the property * * * of a corporation in the same manner as though the defendant would be liable to arrest in a civil action, except that, in actions founded upon a tort, an attachment shall not issue against a corporation upon which a summons can be served in this state ; * * *." (Emphasis added)

The last clause of N.J.S. 2A:26-2 reads:

"For the purposes of this section a summons can be served upon a person in this state where service can duly be made upon someone on his behalf in the state, but not where service ...


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