On appeal from the Essex County Court.
For reversal -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. For affirmance -- None. The opinion of the court was delivered by Vanderbilt, C.J.
[6 NJ Page 335] From a judgment of the Essex County Court dismissing the defendant's counterclaim for failure to
comply with an order to produce certain books and records the defendant took an appeal which we have certified on our own motion.
The plaintiff instituted this action against the defendant to recover commissions and salary alleged to be due him for services rendered in 1947 and 1948, when he was employed as the manager of the defendant's Newark office. The defendant filed a counterclaim seeking to hold the plaintiff responsible for alleged shortages in the amount of $12,887.96. Subsequently the plaintiff served interrogatories on the defendant for the purpose of obtaining, among other things, information with respect to inventories at the Newark branch during the years in question. The defendant answered certain of the interrogatories, but as to others merely stated they were "improper" without any attempt to comply with Rule 3:33, which provides in part:
"Within 10 days after service of interrogatories a party may serve written objections thereto together with a notice of the hearing of the objections at the earliest practicable time. Answers to interrogatories to which objection is made shall be deferred until the objections are determined."
Thereafter the plaintiff moved the court to suppress the answer and to dismiss the counterclaim on the ground of the defendant's failure to answer the interrogatories. Instead, on September 13, 1949, the court entered an order requiring the defendant to answer the interrogatories and providing:
"It is further ordered that the defendant permit the plaintiff to make an examination of defendant's books and all of its records relative to all sales made and collected by the defendant through its office in Newark, New Jersey, for the years 1947 and 1948, and the books and records of the defendant relative to any inventories taken by the defendant during the years 1947 and 1948, said examination to be held at the place of business of the defendant at Newark, New Jersey, upon the attorneys for the plaintiff giving 7 days' notice of their desire to examine said books and records, * * *."
In accordance with this order the plaintiff gave notice of his desire to examine the defendant's books and records on June
27, 1950, at its Newark office. On that date the plaintiff's counsel attended at the defendant's place of business in Newark, but no books and records relating to the inventories of 1947 and 1948 were produced by the defendant. On the contrary, in defiance of the order counsel and an officer of the defendant stated that the documents would be made available only in Boston.
On July 31, 1950, the plaintiff moved the court for an order suppressing the counterclaim and answer and for such other relief as might be proper in the circumstances, basing the application on the defendant's refusal to comply with the quoted order of September 13, 1949. The judge hearing the motion conferred during the argument with the judge who had granted the order and subsequently on August 2, 1950, entered judgment dismissing the counterclaim. Two days thereafter further argument was had on the defendant's objection to the form of the judgment. At this hearing the defendant's argument to the effect that it had not construed the order of September 13, 1949, to include a recapitulation prepared by its accountants of the 1947 and 1948 inventories together with supporting documents was cut short by the court, since that question had been argued at length at the hearing on the motion. The court did state, however, that while the defendant had failed to obey the order its conduct was not contumacious. The defendant's contention that the judgment was broader than the motion was rejected and the court held that no valid reason appeared as to why the judgment should be altered.
The defendant appealed from the judgment dismissing its counterclaim and thereafter served a statement in lieu of record upon the plaintiff. To this the plaintiff did not respond, but filed his own statement of the facts. The court accepted neither of these statements, but instead prepared its own statement of the facts which it certified as the record to be used on appeal. The defendant then applied to the Appellate Division of the Superior Court for an order directing that ...