Decided: January 10, 1935.
LEE R. BURLEIGH, APPELLANT,
PAUL J. SARTAIN AND JOHN V. RICE, JR., RESPONDENTS
On plaintiff's appeal from a rule entered in the Supreme Court, vacating an order for attachment and quashing the writ.
For the appellant, Hervey S. Moore and John A. Hartpence.
For the respondents, I. Herbert Levy.
[114 NJL Page 153]
The action of the lower court is reviewable on appeal. Hanford v. Duchastel, 87 N.J.L. 205; Sweeney v. Miner, 88 Id. 361; Jaudel v. Schoelzke, 95 Id. 171.
The rule under review will be affirmed, for the reasons stated in the memorandum of Mr. Justice Trenchard, supra. The case of Potter v. Cook, cited by him, not being officially reported, it is proper to repeat the citations made in that case, of the New York decisions in Bronson v. Mitchell, 12 Johns. 460; Humphrey v. Cande, 2 Cow. 509, and Milliken v. Selye, 3 Den. 54. The opinion in Kulich v. Kertacy, 12 N.J. Mis. R. 743; 174 A. 503, relied on by appellant, fully recognizes the rule in Potter v. Cook and that line of cases as applicable to an affidavit for bail or for attachment and is careful to distinguish between the affidavit, on which an order is founded, and the order itself.
The rule under review is affirmed.
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For affirmance -- THE CHANCELLOR, CHIEF JUSTICE, PARKER, LLOYD, CASE, BODINE, DONGES, HEHER, PERSKIE, VAN BUSKIRK, KAYS, HETFIELD, DEAR, JJ. 13.
For reversal -- None.