Passaic Junior Chamber of Commerce, Inc. v. Housing Authority

45 N.J. Super. 397

• Court: New Jersey Superior Court Appellate Division
• Decided: June 10, 1957
• Status: Published

Opinion

The opinion of the court was delivered by

Clapp, S. J. A. D.

This action was brought in' the Superior Court, Chancery Division, by the Passaic Junior Chamber of Commerce, Inc. and Charles D. Binns, Warren 'Binns, Harold Binns and Russell Binns, partners, trading as Binns Passaic Iron and Brass Foundry. The defendants are the Housing Authority, the Board of Commissioners, aration of trial are essential to any modern judicial system in which the search for truth in aid of justice is paramount and in which concealment and surprise are not to be tolerated.” Lang v. Morgan’s Home Equipment Corp., 6 N. J. 333, 338 (1951) (Chief Justice Vanderbilt). “Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation.” Tagliabue v. North Bergen Township, 9 N. J. 32, 37 (1952). The role of our discovery techniques “in the attainment of the just and proper disposition of an action is not less, but if anything more, important than that of the trial itself, and the bench and bar share jointly the responsibility to govern the prosecution of the action accordingly.” Schlossberg v. Jersey City Sewerage Authority, 15 N. J. 360, 371 (1954).

Interrogatories to parties are an especially productive technique for discovery of relevant facts. Burke v. Central R. Co. of N. J., 42 N. J. Super. 387 (App. Div. 1956); Abbatemarco v. Colton, 31 N. J. Super. 181 (App. Div. 1954); Maraziti v. Corigliano, 29 N. J. Super. 86 (App. Div. 1953). Expertly used, they can illumine every area and corner of the litigation, and educe the fullest possible knowledge of the issues and facts before trial, so that the outcome of the litigation will depend on its merits in the light of all the available facts, rather than on the craftiness of the parties or, possibly, the guile of counsel. Lang v. Morgan’s Home Equipment Corp., above, 6 N. J., at page 338.

The answers to the interrogatories in this action were either knowingly false or their preparation attended by gross carelessness or disregard of accuracy. They are so completely at odds with the testimony given by Salvatore D’Agostino that to permit the present judgment to stand would make a mockery and a shambles of our discovery procedure. When defendant’s counsel objected to Salvatore’s testimony seeking to establish a verbal agreement with defendant, the trial court should have refused to hear it.

Where a party furnishing answers to interrogatories subsequently obtains information which renders such answers incomplete, he is required to serve amended answers not later than ten days prior to the day fixed for trial. Thereafter amendments may be allowed “only for extraordinary or compelling reasons and to prevent manifest injustice, and upon such terms as the court may direct.” B. B. 4:23-12. That rule goes on to provide that “In no case shall amendments be allowed at the trial where it appears that the evidence sought to he introduced was known to the party seeking such leave, more than 10 days prior to the trial.” The penalty for failure to correct, amend or supplement incomplete answers to interrogatories is the exclusion of such omitted data at the trial. See Abbatemarco v. Colton, above; Gibilterra v. Rosemawr Homes, 32 N. J. Super. 315 (App. Div. 1954), affirmed on other grounds 19 N. J. 166 (1955). Cf. Burke v. Central R. R. Co. of N. J., above. In practice B. B. 4:23-12, as well as the sanctions implicit therein, have on occasion been relaxed in the “interest of justice,” both by the trial courts and by the Appellate Division, in accordance with the authority of R. R. 1:27A. Abbatemarco v. Colton, above; Barber v. Vaccaro, 32 N. J. Super. 573 (App. Div. 1954); D’Agata v. Larson, 32 N. J. Super. 323 (App. Div. 1954); Gibilterra v. Rosemawr Homes, above; Ross v. Ross, 35 N. J. Super. 242 (Ch. Div. 1955). It has been said that the factors which weigh heavily in cancelling the sanction of the exclusion of testimony at the trial for failure to comply with the rules are (1) absence of a design to mislead or conceal —as, for example, mistake, inadvertence, excusable neglect, or honest misunderstanding; (2) absence of the element of surprise if the evidence is admitted; and (3) absence of prejudice which would result from the admission of the evidence. 2 Schnitzer and Wildstein, op. cit., A IV—682; and see the Abbatemarco, Barber, D’Agata, Gibilterra and Ross cases, just cited; Atlantic Northern Airlines, Inc., v. Schwimmer, 12 N. J. 293 (1953); Evtush v. Hudson Bus Transport Co., 10 N. J. Super. 45 (App. Div. 1950). We find none of these factors present in the record before us. Although closely cross-examined as to the reason for the answers he had given to the interrogatories, considered in the light of his testimony, Salvatore D’Agostino gave none that might remotely be considered as satisfactory, except to venture the suggestion, as we read it, that he meant to refer to DiLuigi as the one who made the “contact” instead of the “contract.”

We find it unnecessary to pass upon the other points raised by defendant. The judgment is reversed and the cause remanded for a new trial.