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Whiteman Food Products Company v. Alimentar

Decided: September 22, 1953.


Bigelow, Daniel J. Brennan and Hughes. The opinion of the court was delivered by Hughes, J.s.c. (temporarily assigned).


This appeal challenges the propriety of two orders entered by Judge Drewen of the Hudson County Court, the first dated March 20, 1953 quashing a writ of attachment theretofore allowed by another of the learned judges of such court, and the second dated April 1, 1953 refusing to accept additional proofs to support the attachment thus quashed, and on such basis to vacate the order of March 20, 1953.

The focal order for issuance of the attachment writ was entered on February 16, 1953 on the application of plaintiff-appellant (hereinafter called appellant), a corporation of the Commonwealth of Pennsylvania, against goods in New Jersey which had been shipped by the defendant-respondent (hereinafter called respondent), a foreign (Italian) corporation, non-resident in the sense of the attachment statute. Such application was supported by the affidavit, dated February 11, 1953, of Mr. Whiteman, president of appellant, which apparently constituted "* * * proof to the satisfaction of the court, establishing the plaintiff's right to the writ * * *" (former Rule 3:72-1), and resulted in the entry of the order that writ of attachment should issue. The relevant tenor of such affidavit dealt with an alleged contract of purchase of 3,500 barrels of gherkins by appellant of respondent, and respondent's breach by failure of delivery. Respondent moved on several grounds to quash the writ, the prime attack being based upon the alleged deficiencies of such supporting affidavit. It was on the basis of the insufficiency of such affidavit that Judge Drewen quashed the writ, commenting in his opinion that:

"I do not see how anyone could possibly tell upon a basis of evidential proof that there was a contract between these parties or the terms thereof, or any particular in which it can be said to have been breached."

In a supplemental memorandum leading to its order of March 20, 1953, the court referred to a suggestion that to remedy these defects "* * * additional affidavits be submitted under former Rule 3:72-3." In rejecting this proposal the court stated its reasons, inter alia:

"Counsel for the plaintiff suggests that additional affidavits be submitted under Rule 3:72-3. I take it that the submission of affidavits under that rule is within the discretion of the court. There are factors here, in the court's opinion, that definitely militate against the exercise of such discretion in favor of what plaintiff asks.

This writ was issued on February 16; the attachment was made on that day; and the subject of the attachment is a ship's cargo of perishable foodstuffs brought to this port from Italy and discharged at the Holland-American Line docks in Hoboken. Argument under defendant's attack upon the writ was initiated on Monday, March 9, the two points urged by defendant on that day having been decided against the defendant. On defendant's application, the argument was continued over for further hearing on March 13, and it was at the conclusion of that hearing that the court dictated its letter of opinion of the same date, already referred to. Today is March 18, and no affidavit has been proposed to the court as a subject of additional submission to the papers already in.

I am bound to observe another feature of the case which I think puts the court upon notice, so to speak. The original plaintiff here is the consignee of the shipment that has been attached. * * *

With regard to the rule invoked respecting the application to submit further affidavits, it is the court's interpretation of that rule that it is not intended, as already expressed in the opinion letter, to permit the making of a case de novo where a writ of attachment has already been issued on defective papers, an attachment made under the writ, and goods held for so long a period as a month or more.

Moreover, if the court were to allow additional affidavits, it could in reason be only upon the assumption that such affidavits would make good the establishment of a case, and there is nothing to justify any such attitude of mind.

The requirements of the rule with respect to the character of affidavits is such as to admit of no mistake or misunderstanding. It follows that if one is not required to establish the right which is presupposed by the attachment provision of the rules, then a writ of attachment may be sought out in almost any ...

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