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Seiden v. Fishtein

Decided: March 29, 1957.

HERMAN SEIDEN AND DAVID EISENBERG, PLAINTIFFS-APPELLANTS,
v.
OSCAR FISHTEIN, DEFENDANT-RESPONDENT



Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d.

Clapp

[44 NJSuper Page 372] Appeal is taken by the plaintiffs from an order quashing a writ of attachment. The attachment had issued out of the Superior Court, Law Division, upon

affidavits submitted by them in an endeavor to meet the requirements of N.J.S. 2 A:26-2, subd. a:

"An attachment may issue out of the superior court * * *.

(a) Where the facts would entitle plaintiff to an order of arrest before judgment in a civil action * * *."

Further see N.J.S. 2 A:15-42.

The writ was quashed because of an alleged insufficiency in these affidavits. It is averred therein that "plaintiffs and defendant in February 1955 entered into a partnership agreement whereby the three of them were to become associated with one G. Crassas in the real estate business of Central Park Development Co., a corporation of New Jersey," the three to share equally in the profits and losses "of said venture." Needless to say, this is an inapt, obscure statement; whether the plaintiffs and defendant became joint adventurers with the corporation, or whether some other arrangement was agreed upon, we have no means of knowing.

But it is further alleged in the affidavits that Crassas had an option to purchase for $28,000 the interests (whatever they were) of the plaintiffs and defendant in this venture and that in September or October 1955 he exercised the option, paying defendant $18,000 in cash and $10,000 by "the liquidation" of a claim due Crassas from the defendant and the plaintiff Seiden. In addition it is alleged therein that not only has the defendant failed and refused to turn over to plaintiffs "their share of the proceeds," but he has falsely stated that he has not received any moneys in this partnership venture.

The Law Division seems to have been of the view that, so far as appears in the affidavits, defendant was entitled to appropriate to himself whatever Crassas had paid him. The affidavits are indeed sketchy, but we think it inferable therefrom that Crassas bought out the entire interest of the plaintiffs and defendant in the venture for $28,000 free and clear of claims; and that since the three of them were to share equally in the profits and losses, they presumably were to share equally in the $28,000. Rossie v. Garvan , 274 F. 447, 453

(D.C. Conn. 1921). Each of the three therefore became entitled to $9,333.33. However as above stated, a benefit was conferred on Seiden and Fishtein by Crassas' cancellation of their debt to him in the amount of $10,000. If we assume that Seiden and Fishtein were bound to contribute equally toward the payment of this debt (but cf. 2 Williston, Contracts (rev. ed. 1936), ยง 345), it may be inferred that the plaintiffs and defendant are entitled to share in the $18,000 as follows: Eisenberg, $9,333.33; Seiden, $4,333.33; and Fishtein, the remaining $4,333.34.

Where, as here, the affidavits submitted by plaintiffs, upon which an attachment has been granted, are assailed on a motion to quash, the plaintiffs are entitled to the benefit of all inferences fairly deducible therefrom. Mueller v. Seaboard Commercial Corp. , 5 N.J. 28, 32 (1950). We think the affidavits before us make out a prima facie case. Original R. & R. Empire Pickle Works v. G. Arrigoni & Co., etc. , 28 N.J. Super. 405, 409 (App. Div. 1953). On several occasions we have expressed our entire disapproval of the persistency today of the former practice in attachment under which writs were quashed on a technical basis, without any regard for the merits and without granting leave to file additional affidavits, where they are appropriate. R.R. 4:77-3; Whiteman Food Products Co. v. Prodotti Alimentari , 31 N.J. Super. 277, 280 (App. Div. 1954).

There is another question in the case. The affidavits, by reason of their very sketchiness, raise some doubt as to whether under our former system of courts, plaintiffs' claim against defendant would have been legal or equitable in nature. We will assume it is equitable. Savage v. Dowrie , 111 N.J. Eq. 108 (Ch. 1932); Davis v. Minch , 80 N.J.L. 214 (Sup. Ct. 1910). The question thus presented is whether the writ will issue under the statutes relied upon here (that is, as above indicated, N.J.S. 2 A:26-2, subd. a , taken in conjunction with N.J.S. 2 A:15-42) in connection with an equitable claim. ...


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