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Stivali v. Space

Decided: July 28, 1950.

CARMINE STIVALI, PLAINTIFF,
v.
CHRIS SPACE AND PUBLIC SERVICE COORDINATED TRANSPORT, DEFENDANTS



William A. Smith, J.s.c.

Smith

This action is brought by the plaintiff against one Chris Space, who answers as Chris Space Damos, and the Public Service Coordinated Transport. The first count charges, with reference to an accident which occurred on July 22, 1945, that the plaintiff was a passenger in the individual defendant's car which was in collision with a Public Service Coordinated Transport bus, and charges negligence on the part of the individual defendant. The second count refers to the same accident and charges negligence on the part of the corporate defendant. The defendants answered, each denying the negligence charged in their respective counts.

The defendant, Chris Space Damos, propounded interrogatories to the corporate defendant under Rule 3:33, and the corporate defendant now moves its objection to the interrogatories on the ground that under Rule 3:33 interrogatories may only be served upon an adverse party and the interrogatory is improper as a matter of law. The interrogatory propounded was: "State the identity and location of persons having knowledge of any relevant facts." The motion was argued and it was urged that the adverse party contemplated by the Rule was one as to whom the adverseness was demonstrated by the pleadings, that is, there was an issue created by the pleadings between the parties. The pertinent part of Rule 3:33 is as follows:

"After the commencement of the action any party may serve upon any adverse party written interrogatories to be answered. * * *

"Interrogatories may relate to any matters which can be inquired into under Rule 3:26-2, and the answers may be used to the same extent as provided in Rule 3:26-4 for the use of the deposition of a party."

Rules 3:26-2 and 3:26-4 read as follows:

"3:26-2. Scope of Examination

"Unless otherwise ordered by the court as provided by Rule 3:30-2 or 3:20-4, the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the examining party or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts. It is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence. Nor is it ground for objection that the examining party has knowledge of the matters as to which testimony is sought. The deponent shall not be required to produce or submit for inspection any writing obtained or prepared by the adverse party, his attorney, surety, indemnitor, or agent in anticipation of litigation and in preparation for trial unless the court otherwise orders on the ground that a denial of production or inspection will result in an injustice or undue hardship; nor shall the deponent be required to produce or submit for inspection any part of a writing which reflects an attorney's mental impressions, conclusions, opinions, or legal theories, or, except as provided in Rule 3:35, the conclusions of an expert."

"3:26-4. Use of Depositions

"At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used in accordance with any one of the following provisions:

"(a) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness.

"(b) The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing or authorized agent of a public or private corporation, partnership, or association which is ...


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