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D''Agata v. Larson

Decided: October 8, 1954.

VINCENT D'AGATA, PLAINTIFF-APPELLANT,
v.
HARVEY L. LARSON, DEFENDANT-RESPONDENT



Eastwood, Goldmann and Schettino. The opinion of the court was delivered by Goldmann, J.A.D.

Goldmann

Plaintiff argues two points on this appeal: (1) the trial court erred in permitting an expert witness to testify for defendant where the name and address of such expert was not given in defendant's answer to interrogatories; and (2) the verdict was contrary to the trial court's instructions.

Plaintiff and defendant had entered into a written contract whereby plaintiff undertook to build a home for defendant in accordance with the accompanying plans and specifications for the sum of $14,000. The house was built and the agreed price paid. Plaintiff claims that during the course of the construction defendant requested him to do certain extra work on the project, and he thereupon proceeded to do such work at a cost of $1,052.36. Defendant having refused to pay this sum, plaintiff instituted this action demanding judgment for $1,052.36 as the reasonable value of the extra work performed, together with interest and costs. Defendant answered denying the allegations of the complaint and, in turn, counterclaimed for defects and omissions in the construction of the house. Briefly, these involved defective work on the fireplace, kitchen sink, formica top, utility and powder room floors, and some plastering, and failure to provide trim around a trap door, a louvre in the utility room ceiling, and flashings around 15 windows.

We are provided with an extremely abbreviated record of the trial proceedings; only part of the testimony of two witnesses is set out in the Appendix -- that of plaintiff and of defendant's expert witness, Taylor. Defendant did not dispute four of the items in plaintiff's list of extra work. Taylor testified as to the defective and omitted work, and the cost of making good each of the deficiencies, the total being $1160. After reviewing some of the evidence, the trial judge directed the jury to make a determination upon both plaintiff's claim and defendant's counterclaim and to bring in two separate verdicts which the court would then mold into one judgment in accordance with the jury's determinations.

When defendant called Taylor as his expert witness, plaintiff's attorney objected to his testifying because his name and address had not been provided in answer to interrogatories. Plaintiff had propounded the following interrogatory:

"34. Set forth specifically the names and addresses of all persons who have any knowledge or pertinent information directly or indirectly concerning this claim, the defense or the contemplated trial."

The answer given by defendant was:

"Defendant, Mrs. Larson, A. Giordano and Mrs. Giordano and such expert witnesses who may be called to examine the property or to give estimates."

When defendant's attorney explained that he did not get Taylor until only two days before, the trial judge observed that he was duty-bound to disclose the name to plaintiff. However, he denied plaintiff's motion and allowed Taylor to testify.

Some preliminary observations are in order. Issue was joined when plaintiff filed his answer to the counterclaim on October 2, 1953. R.R. 4:28 calls for the completion of discovery proceedings within 90 days of the date of issue joined, unless for good cause shown the period is extended

by order of court. Further use of discovery proceedings is permitted, on order of the court, either before or after entry of judgment. Discovery proceedings were not initiated within the 90-day period, and plaintiff sought no court order. Instead, he first served his interrogatories on the date of the pretrial conference, January 6, 1954. Ordinarily, discovery proceedings are to be completed before the pretrial conference. See R.R. 4:28 and 4:29-2. The pretrial order entered on January 6, 1954 ...


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