Weiss v. Shapiro Candy Manufacturing Co.

Supreme Court of New Jersey

Weiss v. Shapiro Candy Manufacturing Co.

13 A.2d 304, 124 N.J.L. 534, 1940 N.J. Sup. Ct. LEXIS 143

DecidedMay 18, 1940

StatusPublished

This text of 13 A.2d 304 (Weiss v. Shapiro Candy Manufacturing Co.) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Weiss v. Shapiro Candy Manufacturing Co., 13 A.2d 304, 124 N.J.L. 534, 1940 N.J. Sup. Ct. LEXIS 143 (N.J. 1940).

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Opinion

The opinion of the court was delivered by

Parker, J.

Defendant is described in the summons and complaint as a corporation of New York. The question before the Passaic Pleas was whether defendant had been legally served with the summons and complaint in this cause. The Pleas held to the contrary, and this holding is before us on plaintiff’s appeal.

Por the defendant it is first objected that the order setting aside the service is not a final judgment, and hence that appeal does not lie. But we consider that it had all the elements of finality, inasmuch as the case shows that the person on whom the service was made was a traveling salesman residing in Brooklyn, with no place of business in this state, and con *535 sequently not within the language of the first paragraph of R. S. 2:36-44. The mixed question of law and fact which was before the Pleas for decision was whether this-, salesman was a “servant of the corporation within this state and acting in the discharge of his duties.” If not, that is the end of the case, as it is not intimated that there is any other representative in this state on whom process may be served. The order is therefore a finality, and appeal lies. Bickel v. Pennsylvania Steel Co., 123 Md. 226; 91 Atl. Rep. 136. We have held to the same effect in cases of attachment. Hanford v. Duchastel, 87 N. J. L. 205; Jaudel v. Schoelzke, 95 Id. 171; Burleigh v. Sartain, 114 Id. 151, 153. See, also, Sweeney v. Miner, 88 Id. 361.

It remains, therefore, to decide whether the judge of the Common Pleas erred in setting aside the service; and we think that he did err. His decision followed as a precedent the case of Jaeger v. Breslow Brothers, 9 N. J. Mis. R. 1069. But an important and determinative feature of that case was that the salesman was authorized only to take orders, and the acceptance or rejection of those orders vested with the home office in New York; whereas in the case at bar the testimony of the salesman was that he had authority to accept orders and “finish the deal * * * in the store in New Jersey.” The case is not within the ruling in Hoffman v. Carter, 117 N. J. L. 305; affirmed in 118 Id. 379, but rather within that in Giovannini v. Hartford, &c., Co., 130 Id. 580.

The rule or order setting aside the service of process is reversed, and the cause remanded for further proceedings therein.

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The opinion of the court was delivered by

Parker, J.

Defendant is described in the summons and complaint as a corporation of New York. The question before the Passaic Pleas was whether defendant had been legally served with the summons and complaint in this cause. The Pleas held to the contrary, and this holding is before us on plaintiff’s appeal.

Por the defendant it is first objected that the order setting aside the service is not a final judgment, and hence that appeal does not lie. But we consider that it had all the elements of finality, inasmuch as the case shows that the person on whom the service was made was a traveling salesman residing in Brooklyn, with no place of business in this state, and con *535 sequently not within the language of the first paragraph of R. S. 2:36-44. The mixed question of law and fact which was before the Pleas for decision was whether this-, salesman was a “servant of the corporation within this state and acting in the discharge of his duties.” If not, that is the end of the case, as it is not intimated that there is any other representative in this state on whom process may be served. The order is therefore a finality, and appeal lies. Bickel v. Pennsylvania Steel Co., 123 Md. 226; 91 Atl. Rep. 136. We have held to the same effect in cases of attachment. Hanford v. Duchastel, 87 N. J. L. 205; Jaudel v. Schoelzke, 95 Id. 171; Burleigh v. Sartain, 114 Id. 151, 153. See, also, Sweeney v. Miner, 88 Id. 361.

It remains, therefore, to decide whether the judge of the Common Pleas erred in setting aside the service; and we think that he did err. His decision followed as a precedent the case of Jaeger v. Breslow Brothers, 9 N. J. Mis. R. 1069. But an important and determinative feature of that case was that the salesman was authorized only to take orders, and the acceptance or rejection of those orders vested with the home office in New York; whereas in the case at bar the testimony of the salesman was that he had authority to accept orders and “finish the deal * * * in the store in New Jersey.” The case is not within the ruling in Hoffman v. Carter, 117 N. J. L. 305; affirmed in 118 Id. 379, but rather within that in Giovannini v. Hartford, &c., Co., 130 Id. 580.

The rule or order setting aside the service of process is reversed, and the cause remanded for further proceedings therein.

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13 A.2d 304, 124 N.J.L. 534, 1940 N.J. Sup. Ct. LEXIS 143, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weiss-v-shapiro-candy-manufacturing-co-nj-1940.

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