On appeal from New Jersey Department of Labor and Industry, Workmen's Compensation Division. Civil action. Determination of facts and order dismissing appeal.
Petitioner filed a claim for compensation for an accident to his right index finger. The respondent at first denied permanent disability, but later admitted it, and on April 30, 1952, full compensation was allowed but no counsel fee. The reason given by the deputy director for not allowing any fee was that on April 16, 1952 a letter was received by registered mail by the petitioner's attorney, notifying the petitioner's attorney that the respondent would acknowledge liability. The award did not exceed the amount contained in such notice. There was no formal hearing, but on April 30, 1952 the deputy director allowed the petitioner full compensation.
Petitioner's attorney's claim for counsel fee is based on his claim that on April 16, 1952, he was in court with his witnesses, and that it would be unfair to deprive him of a counsel fee under the circumstances. He relies on the case of Everhart v. Newark Cleaning & Dyeing Co. , 14 N.J. Misc. 270, 184 A. 200 (C.P. 1936), and Haberberger v. Myer , 4 N.J. 116, 71 A. 2 d 717 (1950). He takes the position that the offer came too late. At his insistence and with the consent of the attorney for the respondent, and after a number of hearings and arguments, the court made an order remanding the case to the bureau, for the purpose of finding out whether the case was marked ready prior to April 30, 1952, and whether the case was set down peremptorily for April 30, 1952, through any fault of the petitioner's attorney to prosecute. Also whether petitioner's attorney was in court on April 16, 1952, with his witnesses, but was not reached.
I now have the information sent to me under oath by the deputy director, although I did not order it under oath, and in this new testimony the petitioner's attorney said:
"In any event, I believe it was next listed for hearing on April 16, 1952, at which time the case was marked ready and I was prepared to proceed, and as I recall the case was not reached.
Then I think, it was next listed on April 30, which I think now is the date the case was actually heard."
On the other hand the deputy director said:
"According to the note that I have in my own handwriting on the calendar of April 16, 1952, the case was marked ready. There is a further memorandum in my handwriting which states 'Petitioner's Attorney on Trial, Upper Court.' This is an indication that when the case was actually called for trial, Mr. Butt was not available and that I was advised that he was engaged in a trial in the Upper Court. There is no note that his client was present. I also find a note in my handwriting that I adjourned the case until April 30, 1952, instructing my secretary to list the case on the latter date as the No. 2 case.
On April 30, 1952, the case was set down again as the No. 2 case on the calendar of that day. A peremptory notice was once again forwarded to the parties. I note, in my handwriting, that I heard the issue and entered an award in favor of the petitioner."
I do not find that petitioner's attorney had carried the burden of proof that he was ready and prepared for trial, and in court with his witnesses on April 16, 1952, before he received any notice to amend, or acknowledgement of liability. On the contrary the deputy director reports that there was no answer when the case had previously been called on March 20, 1952, and the case was accordingly adjourned until April 16, 1952, and marked ready. The petitioner's attorney was not in court, according to the deputy director's records, and the case was adjourned to April 30, 1952. I cannot say that the attorney was at fault since the record shows he was engaged in an upper court on April 16, 1952. Also, he received a notice on the 16th of April which made a formal hearing unnecessary.
I note from the deputy director's unrefuted statement at the hearing on April 30, 1952, that the case was called at 10:00 A.M. on April 30, 1952, but at the request of the petitioner's attorney a conference was held with the deputy and ...