Gaulkin, Lewis and Labrecque. The opinion of the court was delivered by Labrecque, J.A.D.
On May 19, 1962 an automobile operated by plaintiff William Rene, in which his wife Gertrude was a passenger, was in collision with one owned by defendant William Phillips (William) and driven by his brother Richard Phillips (Richard). Since the Phillips car was not covered by liability insurance, notice of intention to make claim, as required by N.J.S.A. 39:6-65, was filed with the Unsatisfied Claim and Judgment Fund Board (Board). The Board also received notice of the pendency of the present suit to recover compensation for the damage to the Rene automobile, personal injuries sustained by Mrs. Rene and consequential damages to her husband. An appearance was entered by private counsel on behalf of defendants William and Richard. The trial in the county district court was scheduled for May 24, 1965. On May 25, 1965 counsel for defendants wrote General Adjustment Bureau, to which the claim had been assigned by the Board, as follows:
"I represent both defendants in the above matter which was listed for trial in the Passaic County District Court on Monday, May 24, 1965.
Prior to that time, I attempted to contact the defendants but was only successful in obtaining the whereabouts of William Phillips. Mr. William Phillips informed me that he no longer knew where his brother Richard was living as he had not seen him for the past several months.
Due to the fact that Richard was not available, the case against him was marked default, and the matter against William was settled. The Plaintiff, Mrs. Rene and her attorney will prove the case as to damages against Richard Phillips on Tuesday, May 24, 1965, [ sic ] after which time I will inform you of the amount of judgment."
On Friday, May 28, 1965, judgment by default was entered in favor of Gertrude Rene and against Richard in the amount of $2,500, but counsel did not so advise the Board. We are not advised as to the disposition of the claim of Mr. Rene.
The first notice to the Board of the actual entry of the default judgment was contained in a notice of motion to compel payment, N.J.S.A. 39:6-69, dated May 3, received May 5 and returnable on May 16, 1966. Upon receipt of the notice
through the mail the Board retained present counsel to oppose the motion. He, in turn, addressed a letter to the clerk of the court entering his appearance in opposition to the motion and requesting an adjournment of the hearing date. The letter was received and filed on May 16, 1966, but counsel was advised that the motion had been granted on May 13, 1966.
On May 23, 1966 counsel for the Board served notice of a motion to vacate both the default judgment dated May 28, 1965 and the order for payment entered on May 13, 1966 or, alternatively, for a redetermination, in accordance with N.J.S.A. 39:6-74, of the amount of damages justly due and payable to plaintiff. The motion was denied in toto and the Board appeals.
In essence, it is the contention of the Board that (1) the order for payment was improvidently entered in that notice of the application therefor was not served upon it within the time limited by N.J.S.A. 39:6-69, the statute authorizing said payment, and (2) since plaintiffs' judgment was entered by default, in the absence of Richard, and without notice to the Board, under N.J.S.A. 39:6-74 the Board may be required to pay on account thereof only such sum as may be found by the court to be justly due and payable on the basis of the amount of actual damages for which Richard was liable to plaintiff Gertrude Rene.
We hold that the order directing payment of the judgment by the Board was improvidently entered and that the motion of May ...