and to which the affiant is competent to testify.' (Emphasis added.)
It appears from the New Jersey cases that applications for the remedy of attachment are to be construed most favorably to the plaintiff seeking this remedy since the writ must issue quickly to be efficacious. Original R. & R. Empire Pickle Works v. G. Arrigoni & C., App.Div. 1953, 28 N.J.Super. 405, 101 A.2d 17. Further, the application for the writ should essentially stand on its own merit aside from any technical difficulties that may exist. Seiden v. Fishtein, App.Div.1957, Div.1957, 44 N.J.Super. 370, 130 A.2d 645. The affidavits need only make out a prima facie case in favor of the plaintiff and plenary proof is not required. Mueller v. Seaboard Commercial Corp., supra.
In this case the only facts which would be admissible in evidence concerning the shortage of boxes of choice grade pears was the allegation by Samuel D. Zellat, President of Prozel, that of the pears taken from storage in Jersey City to the auction room in New York City 'only 8,630 boxes were determined to be of choice grade and the remaining 6,544 boxes were determined to be of standard grade.' Even this is construing the allegation most strongly in favor of the plaintiff, since nowhere does it appear that the affiant had personal knowledge of this fact. However, it is clear that the conclusion then indulged in by means of the extrapolation procedure recited previously, i.e., that the unsold portion of the shipment in storage would contain the same proportion of choice grade boxes to standard grade boxes as was sold, without any apparent attempt at verification on the part of Prozel, is sheer speculation. This is the foundation on which this writ was issued, as Prozel based its claim for damages upon those projected figures. This it cannot do as the damages claimed in the action must be reasonably certain and not speculative. Cf. Republic of Italy v. De Angelis, D.C.S.D.N.Y.1952, 106 F.Supp. 605, 611, reversed on other grounds 2 Cir., 206 F.2d 121. The damages must be liquidated before a party can subject another to the hardship that this remedy entails. Grover v. Woodward, 1920, 91 N.J.Eq. 250, 109 A. 822, reversed on other grounds 92 N.J.Eq. 227, 112 A. 412; Gilson v. Appleby, 1910, 80 N.J.L. 542, 77 A. 1084, affirmed 8i N.J.L. 400, 81 A. 724; see Dicks-David Co. v. Edward Maurer Co., D.C.D.N.J.1922, 279 F. 281, 284.
It follows from a reading of the supporting affidavit that the writ was improperly issued and that it must be quashed. Cf. Korb v. Newspaper P.M., D.C.D.N.J.1941, 38 F.Supp. 339. This Court therefore has no further jurisdiction in this matter. Hisel v. Chrysler Corp., D.C.1950, 90 F.Supp. 655.
The further contentions of the defendant Bendiner need not be considered in light of the above and since no brief has been filed on behalf of the plaintiff, an order may be entered in accordance with this opinion.
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