Jordan v. Hoffman

• Decision Date: 12 March 1941
• Docket Number: No. 239/289.,239/289.
• Citation: 18 A.2d 607,126 N.J.L. 100
• Parties: JORDAN v. HOFFMAN et al.
• Court: New Jersey Supreme Court

18 A.2d 607

126 N.J.L. 100

JORDAN

v. HOFFMAN et al.

No. 239/289.

Supreme Court of New Jersey.

March 12, 1941.

On the affidavit of Albert H. Hoffman, Arnold Jordan was held to bail to answer to Albert H. Hoffman and Alfred Goldstein for damages for breach of contract to sell certain shoes at retail and account therefor. To review an order denying his motion to consider and determine sufficiency of proofs upon which the order for was founded, Arnold Jordan brings certiorari.

Writ of certiorari dismissed.

Argued October term, 1940, before BROGAN, C. J., and PARKER and PERSKIE, JJ.

Eichmann & Seiden, of Jersey City (Julius J. Seiden, of Jersey City, of counsel), for prosecutor.

Max L. Rosenstein, of Newark (George H. Rosenstein, of Newark, of counsel), for respondents.

PERSKIE, Justice.

The single question requiring decision, on the merits, is the sufficiency of the affidavit upon which the capias ad respondendum was issued.

The affidavit, executed on January 5, 1939, by Albert H. Hoffman, had annexed thereto an agreement between the prosecutor and respondents dated April 6, 1937. By the terms of this agreement, respondents, as consignors, were to deliver to prosecutor "up to fifteen hundred (1500) pair of shoes bearing the trade name of 'Friendly Shoes' * * * to be kept there on consignment for the purpose of sale at retail trade." Respondents were to retain title to said shoes until sold, by prosecutor, to third parties. Prosecutor, as consignee of the shoes, was required, by the terms of the agreement, to keep the shoes separated from his other stock in trade. Prosecutor also agreed to hold separate and apart from any moneys belonging to him, a portion of the proceeds of each pair of shoes sold, equal to the cost price of that pair, plus fifteen cents. He was to deposit this money semi-weekly in a designated account in the Hudson County National Bank in Jersey City.

The affidavit stated that in pursuance of this agreement a quantity of shoes was delivered to prosecutor and that he made sales and deposited four checks in the designated account in the aggregate sum of $1,272.65. Each and every one of these checks, affiant states, was returned unpaid because of insufficient funds and no part of the moneys was turned over or paid to the respondents.

On July 23, 1937, prosecutor filed a voluntary petition in bankruptcy and subsequently an order was made for the receiver to turn over to respondents the remaining shoes which were still on hand in the premises of prosecutor. Affiant, however, stated that a quantity of the "Friendly Shoes" and of "Jarman-Custom Shoes" had not been returned and that prosecutor failed and refused to turn them over. The total amount of the moneys unaccounted for by prosecutor was stated to be $2,053.20.

Accordingly, on January 28, 1939, David M. Satz, a supreme court commissioner, ordered that Arnold Jordan, the prosecutor in this proceeding, be held to bail for the sum of $2,053.20 to answer unto Albert H. Hoffman and Alfred Goldstein, respondents here.

Respondents, thereupon, on February 7, 1939, filed their complaint, as plaintiffs in an action at law in the New Jersey Supreme Court, seeking damages (a) in accordance with the contract, (b) in accordance with a stated account, and (c) in accordance with the reasonable value of the shoes. Prosecutor, on February 1'5, 1939, filed an answer denying each and every allegation of the complaint.

On June 28, 1940, a substitution of attorneys for the prosecutor was entered into and on July 16, 1940, prosecutor filed a notice of a motion to consider and determine the sufficiency in fact as well as in law, of the proofs upon which the order for bail was founded. On July 20, 1940, an order was entered by Circuit Court Judge Caffrey, sitting as a supreme court commissioner, denying prosecutor's motion. Thereupon prosecutor, on August 16, 1940, obtained a writ of certiorari to review the legality of the aforementioned order holding him to bail.

Respondents have filed a motion to dismiss the writ on the ground that the exparte affidavits had spent their force and that the state of the case was incomplete.

It is true that prosecutor, not having taken any depositions in this proceeding, is precluded from resorting to the affidavits used in obtaining the writ of certiorari. For the evidential force of affidavits employed to obtain a rule to show cause or a writ of certiorari expires with the allowance of the rule or the writ, and the facts alleged therein can be brought before the court only by depositions taken on notice, or, perhaps, by stipulation. Kantor v. Perth Amboy, 122 NJ.L. 588, 7 A.2d 403; Hunterdon County Nat. Bank v. Packer, 121 NJ.L. 24, 25, 1 A.2d 17, affirmed, 122 NJ.L. 377, 5 A.2d 694; Paterson Stove Repair Co. v. Ritzer, 123 NJ.L. 145, 8 A.2d 133. But prosecutor is not here attempting to use the affidavits on which the writ was allowed. That affidavit is not made to appear. He challenges the legality, the sufficiency of the affidavit upon which the capias and order to hold to bail was issued. That affidavit is properly before us as part of the record certified by the clerk. Thus in case No. 289 the motion to dismiss the writ of certiorari is denied.

1. Did prosecutor on the facts of this case waive his right, as it is argued, to make application to have determined the legality of the order upon which he was held to bail?

Prosecutor did not choose, as he might have chosen within 30 days after his arrest, to make application for an order to take testimony as to the truth of the proofs upon which the order to hold him to bail was made, even though he had given bail. R.S. 2:27-78, NJ.S.A. 2:27-78. Instead he chose...