Western Electric, the option of renewal for an additional period of five years upon the same terms and conditions, and obligated the lessor to 'offer first to the Lessee, which shall have the right of first refusal, to rent any other space in the building, and available for leasing, of which the demised space is a part, which may become vacant during the term of this lease, at a rental to be agreed upon by the parties.' All of the criteria suggested by movant for the showing of a prima facie case on the application for the writ, are here present. The original lease, admittedly negotiated through the efforts of the plaintiff, granted the tenant the privilege of taking additional space in the same building. It is also irrefutable that the tenant took additional space in the building under the subsequent lease. It is a permissible, if not a conclusive, inference that in taking this additional space the tenant availed itself of the privilege accorded to it by the provisions of the original lease. Plaintiff predicates its right to recover commissions upon the rentals to be paid under the subsequent lease upon the terms of the brokerage agreement pursuant to which the original lease was negotiated. That brokerage agreement incorporated by reference the Rules of the Detroit Real Estate Board. Those Rules provided, inter alia, that where the lessee avails himself of the privilege of renewal or extension of the lease or takes on additional space under provisions of the original lease, the negotiating broker shall be entitled to additional compensation, etc.
We are now called upon to determine whether the taking on of additional space by Western Electric, by availing itself of a privilege accorded to it in the original lease, was 'under provisions of original lease' as that phrase is to be construed in the Detroit Real Estate Board Rules. In attempting to solve the problem posed by the foregoing query, we must consider the effect of paragraph 1 of the subsequent lease which states that the subsequent lease supercedes the original lease and terminates the original lease and renders the original lease no longer of any force and effect. The existence of a prima facie cause of action in favor of the plaintiff upon the basis urged by it is not inconsistent with the meaning and intent of the language of paragraph 1 of the subsequent lease. Since we are persuaded to the inference that the entry into the subsequent lease was an exercise by the tenant of a privilege accorded to it by the provisions of the original lease, the inclusion of the additional space in the subsequent lease with the same space which had been demised by the original lease, would obviously and reasonably necessitate or render appropriate the supercession of the original lease. In so providing, the parties could not deprive the broker who negotiated the original lease from availing himself of the provisions of his brokerage agreement with the lessor and from treating the subsequent lease as in substance an enlargement of the area demised in the original lease. Zinn & Co. v. Shawnee Pottery Co., D.C.Ohio, 1955, 148 F.Supp. 322, affd. 6 Cir. 1956, 240 F.2d 958. Also, although it is quite possible that a strict renewal of the original lease has not occurred, the Court must be prepared to look through the form of the transaction to its substance, Zinn & Co. v. Shawnee Pottery Co., supra, and the existence and terms of the subsequent lease easily establish an inference that the subsequent lease is in fact a renewal of the original lease. I conclude, therefore, in the light of the totality of the evidence before me, that the order of the Superior Court of New Jersey which authorized the issuance of the writ of attachment must be considered as valid.
The motion to quash the writ in this case was based upon the complaint and its verifying affidavit. For the purposes of that motion 'The averments contained in such papers are to be deemed true, and all legitimate deductions and inferences from what appears in such papers must be made and construed in favor of plaintiff, and if such papers show a prima facie case for the attachment this is sufficient.' Mueller v. Seaboard Commercial Corp., 1950, 5 N.J. 28, 32, 73 A.2d 905, 907. The case pends in this Court solely by virtue of diversity of citizenship between the parties. In such a case this Court sits as another court of the State of New Jersey. The remedy by attachment derives from the New Jersey statute, N.J.S.A. 2A:26-1 et seq. The very first section of that statute directs that it is to be 'liberally construed, as a remedial law for the protection of resident and nonresident creditors and claimants.' Not only the statute itself, but the procedure prescribed for securing the writ, which is regulated by Rule N.J.R.R. 4:77, must be applied with liberality 'in order to accomplish justice on the merits of the action * * *.' Hillside National Bank v. McGruder, supra, App.Div.1953, 28 N.J.Super. 340, 343, 100 A.2d 682, 683. Applications for the remedy of attachment are to be construed most favorably to the plaintiff seeking the remedy. When the present motion was made the lien of the writ upon the movant's real estate had been lifted by the filing of a bond. No hardship upon the movant has resulted from the Court's allowance of the filing of supplemental evidence in the form of affidavit supportive of the prima facie case which the plaintiff alleged in its complaint. This Court has heard the pending motion on affidavits presented by the respective parties as the New Jersey Court would have been permitted to do under the provisions of N.J.R.R. 4:77-16(b). The validity of the order for the writ finds support in the aggregate evidence adduced by the affidavits upon the present motion.
I have found that the attachment action was properly and effectively instituted in the New Jersey Court, and that the order for the writ, as well as the writ itself, was legally made and effective. The execution of the writ bound the real estate levied upon, and the lien of the levy was removed from the real estate by the filing of the bond by the owner pursuant to N.J.R.R. 4:77-18. The filing of that bond did not constitute a general appearance by the property owner in the action, N.J.R.R. 4:77-18(c). The question of whether this Court or the New Jersey Superior Court secured personal jurisdiction over the moving property owner becomes irrelevant because, although no valid judgment in personam could be rendered against movant without personal service or waiver of summons and voluntary appearance, after the removal of the case to this Court from the State Court, this Court has full control of the action and jurisdiction of the subject matter thereof to the extent that the State Court had such control and jurisdiction before removal. The property which I find to have been properly attached in the State Court proceedings would, but for the bond, still be held to answer any judgment rendered against the moving defendant, but such judgment could be enforced only against the bond as the substitute for the attached property. Clark v. Wells, 1906, 203 U.S. 164, 27 S. Ct. 43, 51 L. Ed. 138. The filing of the bond pursuant to N.J.R.R. 4:77-18, however, removes the lien of the attachment from the real estate and obligates the principal and surety on the bond to the plaintiff to the extent of the amount of the bond, to respond to any judgment which may be recovered against the property in this cause.
The motions to dismiss the complaint and to quash the writ of attachment are denied. The plaintiff is directed to submit an order according with the determinations herein made.
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