For the prosecutor, Eichman & Seiden (Julius J. Seiden, of counsel).
For the respondents, Max L. Rosenstein (George H. Rosenstein, of counsel).
Before Brogan, Chief Justice, and Justices Parker and Perskie.
The opinion of the court was delivered by
PERSKIE, J. The single question requiring decision, on the merits, is the sufficiency of the affidavit upon which the capias ad respondendum was issued.
The affidavit, executed on January 5th, 1939, by Albert H. Hoffman, had annexed thereto an agreement between the
prosecutor and respondents dated April 6th, 1937. By the terms of this agreement, respondents, as consignors, were to deliver to prosecutor "up to fifteen hundred (1,500) pair of shoes bearing the trade name of 'Friendly Shoes' * * * to be kept there on consignment for the purpose of sale at retail trade." Respondents were to retain title to said shoes until sold, by prosecutor, to third parties. Prosecutor, as consignee of the shoes, was required, by the terms of the agreement, to keep the shoes separated from his other stock in trade. Prosecutor also agreed to hold separate and apart from any moneys belonging to him, a portion of the proceeds of each pair of shoes sold, equal to the costs price of that pair, plus fifteen cents. He was to deposit this money semi-weekly in a designated account in the Hudson County National Bank in Jersey City.
The affidavit stated that in pursuance of this agreement a quantity of shoes was delivered to prosecutor and that he made sales and deposited four checks in the designated account in the aggregate sum of $1,272.65. Each and every one of these checks, affiant states, was returned unpaid because of insufficient funds and no part of the moneys was turned over or paid to the respondents.
On July 23d, 1937, prosecutor filed a voluntary petition in bankruptcy and subsequently an order was made for the receiver to turn over to respondents the remaining shoes which were still on hand in the premises of prosecutor. Affiant, however, stated that a quantity of the "Friendly Shoes" and of "Jarman-Custom Shoes" had not been returned and that prosecutor failed and refused to turn them over. The total amount of the moneys unaccounted for by prosecutor was stated to be $2,053.20.
Accordingly, on January 28th, 1939, David M. Satz, a Supreme Court commissioner, ordered that Arnold Jordan, the prosecutor in this proceeding, be held to bail for the sum of $2,053.20 to answer unto Albert H. Hoffman and Alfred Goldstein, respondents here.
Respondents, thereupon, on February 7th, 1939, filed their complaint, as plaintiffs in an action at law in the New Jersey Supreme Court, seeking ...