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Bagnato v. Spencer

New Jersey Supreme Court


Decided: March 13, 1946.

CONCETTO BAGNATO, PROSECUTOR,
v.
SPENCER, WHITE & PRENTIS, INC., DEFENDANT

On certiorari.

For the prosecutor, Laurence Semel.

For the defendant, John W. Taylor.

Before Justices Parker, Bodine and Oliphant.

Bodine

[134 NJL Page 107]

The opinion of the court was delivered by

BODINE, J. This is a workmen's compensation case. It was found in the Bureau that the prosecutor of this writ had not established his right to compensation. The action of the Bureau was affirmed in the Court of Common Pleas. Mr. Justice Parker refused the writ. The court en banc awarded certiorari.

The basis of the award was that it was a debatable question whether the Deputy Commissioner acted arbitrarily in denying the employee's attorney's motion for a continuance of the hearing in order to afford him an opportunity to produce the testimony of the defendant's physicians who had examined the claimant on the day of the alleged accident.

No depositions were taken which would enable us to determine whether the action was arbitrary. There was a bare denial of the continuance. If depositions had been taken on the writ, as they might, we could then determine whether the prosecutor could have established his cause of action if continuance had been granted. Since none were taken, we must assume the facts could not have been established as required by law.

The writ is dismissed, with costs.

19460313


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