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Bernstein & Loubet, Inc. v. Minkin

Decided: April 30, 1937.

BERNSTEIN & LOUBET, INCORPORATED, A CORPORATION OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JAKE MINKIN, PROSECUTOR-APPELLANT



On appeal from the Supreme Court, whose opinion is printed in 14 N.J. Mis. R. 546.

For the appellant, Walter V. Schwartz (Philip J. Schotland, of counsel).

For the respondent, Edward R. McGlynn.

Rafferty

The opinion of the court was delivered by

RAFFERTY, J. Respondent, as plaintiff in the Passaic County Circuit Court, instituted an action in attachment against defendant, appellant here, for the recovery of the value of certain merchandise which respondent alleged had been sold to appellant. Defendant below moved to set aside and vacate the writ of attachment as being improvidently entered upon insufficient affidavits. Prior to argument on the motion to quash, the parties entered into a stipulation, which has been filed in the cause, in the preamble of which it is stated that "the defendant desires to appear generally

and defend the action if the aforementioned motion should be denied and the parties desire accordingly to avoid the procedure of advertisement and the appointment of an auditor;" whereupon plaintiff waived the necessity of advertising and of appointment of an auditor and defendant agreed "that if the motion to quash the writ of attachment should be denied the defendant will appear generally and ask for service of a complaint." It was also agreed in the last paragraph thereof, "that this stipulation shall not be regarded as a general appearance."

Upon argument, the motion to set aside and vacate the writ of attachment was denied. Thereupon and notwithstanding the plain language of the stipulation, defendant did not enter a general appearance but sued out a writ of certiorari in the Supreme Court to determine the validity of the attachment. The writ of certiorari, upon consideration of the matter by the Supreme Court, was dismissed for the reason that prosecutor, appellant here, should be required to respect his own agreement.

Appellant now comes to this court and asks that the Supreme Court be reversed in its judgment and the merits of the case considered and determined here, urging, among other things, that the stipulation before referred to was not a stipulation waiving the right of review or appeal and secondly, that if the stipulation has such effect it is not binding upon the defendant and not enforceable.

As to the first point, the argument that the stipulation expressly provides in the last paragraph thereof, "that this stipulation shall not be regarded as a general appearance," and that therefore the stipulation should not be treated, nor construed, nor used as a general appearance, is indeed frivolous. The stipulation itself is not a general appearance. It is a written statement made to the court by counsel, upon which the court and opposing counsel had the right to rely, that, upon the happening of the denial of motion defendant would appear generally and ask for service of a complaint. The issue having been resolved against defendant he now seeks to avoid the plain implication of his own words by this

specious argument. On this point it is also argued that counsel for defendant did not conceive this stipulation to be a waiver of the right of his client to pursue an appeal from the action of the trial court should the motion to quash the writ be denied. It is incomprehensible that any other result could follow from the stipulation. The failure of counsel for appellant to state any purpose, or present any reason for the inclusion of these simple words in the stipulation confirms the conclusion that the effect given thereto by the Supreme Court was exclusively the effect intended by the parties.

However, it is argued that the stipulation, though made by counsel, is not binding upon the defendant and not enforceable against him, citing, amongst other cases, Howe v. Lawrence, 22 N.J.L. 99; Hygrade Cut ...


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