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Singer v. Schapiro

Decided: June 22, 1945.


On appeal from the Supreme Court, whose opinion is reported in 132 N.J.L. 110.

For the appellant, Gabriel Kirzenbaum.

For the respondents, Philip M. Brenner.


The opinion of the court was delivered by

HEHER, J. The Middlesex Court of Common Pleas quashed a writ of attachment issued in the ordinary course on the usual affidavit of nonresidence and indebtedness. A writ of certiorari to review this action was allowed and later dismissed by a justice of the Supreme Court after hearing had pursuant to R.S. 2:81-5. The basic question for decision, therefore, is the propriety of the rule entered in the Pleas quashing the writ of attachment.

The affidavit upon which the writ of attachment issued satisfied the language of R.S. 2:42-5(b). It alleged nonresidence and a debt in a specified amount. Nonresidence is conceded. The attachment was quashed before complaint filed. It was shown by depositions taken in the Pleas on the motion to quash that the action was brought under section 7 (a) of chapter 676 of the Federal Public Laws of 1938, as amended by chapter 461 of the Public Laws of 1941, known as the " Fair Labor Standards Act of 1938," providing, inter alia, that "No employer shall, except as otherwise provided in this section, employ any of his employees who is engaged in commerce or in the production of goods for commerce -- * * * (3) for a work-week longer than forty hours after the expiration of the second year from such date, unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed" (52 Stat. 1063; 55 Stat. 756; 29 U.S.C.A., § 207); and the ground taken by the Supreme Court was that "the statute, by its terms, applies only to employment in commerce among the states or from a state to a place outside thereof;" that "That sort of commerce is a sine qua non of the employee's

right to sue," and "There is nothing in the proofs by which such employment is shown or from which it may be inferred."

On a motion to quash a writ of attachment it is the practice to test the propriety of the remedy by the nature of the cause of action as disclosed by the plaintiff, and not by its validity. Ordinarily, such a motion is not adapted to the consideration of the validity or justice of the plaintiff's claim, and thus to try in a summary and collateral investigation the main issue between the parties. This procedure is not to be invoked where the questions raised involve "matters too serious and doubtful to be decided on a motion to quash the writ." Anspach v. Spring Lake, 58 N.J.L. 136. This case was followed by the Court of Errors and Appeals in Woods v. Southern Life and Trust Co., 87 Id. 202, where Mr. Justice Swayze said: "'Ordinarily,' as was said by the Supreme Court in Anspach v. Spring Lake, (supra), 'the validity of the claim should not be tried on a motion to discharge the defendant or his property from suit.' To do so, deprives the plaintiff of his right to trial by jury in case the claim is contested, and it would require a clear case of abuse of the process of attachment to justify the court in interfering in this summary way." See, also, Schmidt v. Kyle, 4 N.J. Mis. R. 970; 135 A. 89. It is the general rule that the sole issue before the court on a motion to quash is whether or not the writ should have been issued, and it is not proper for the court to enter upon a consideration of the merits of the action, save in exceptional cases, 7 C.J.S. 623, et seq. The courts are enjoined to give the statute a liberal construction "for the detection of fraud, the advancement of justice and the benefit of creditors." R.S. 2:42-2. It is not requisite that the affidavit set forth the cause of action. Day v. Bennett, 18 N.J.L. 287; Robinson v. Mellon, 2 N.J. Mis. R. 1184; 126 A. 863. The complaint serves that function.

Respondents argue that plaintiff was employed "in a bona fide executive and administrative capacity," and the federal statute is therefore inapplicable. 52 Stat. 1067, § 13 (a); 53 Stat. 1266; 29 U.S.C.A., § 213. But this is not a question that is ordinarily determinable on a motion to quash before complaint filed. It involves an inquiry into the plaintiff's

duties and an interpretation of the federal statute. And it may well involve jury issues. Departmental regulations (section 541.1) define this term specifically and at length. It is also urged that a full examination of plaintiff's depositions shows that "his entire testimony is equivocal and evasive," and is "punctuated by incorrect and untrue statements of fact." But the credit to be given to the testimony is for the jury on the trial of the issue. It is maintained, too, that certain of the defendants were not employers of the plaintiff. This, likewise, may be a jury question in the final analysis. At all events, it does not warrant a quashing of the writ as to the other defendants.

The respondents, in their brief, make little or no effort to demonstrate lack of jurisdiction because they were not engaged in interstate commerce. The interstate commerce category has lately been greatly expanded, and whether the individual case takes that classification is a question that should not be determined until after complaint filed and the proofs are in, either on a motion to strike out the complaint as a frivolous or sham, or upon presentation of evidence after issue joined. As was the case in Anspach v. ...

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