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Nemeth v. Otis Elevator Co.

Decided: May 7, 1959.

JOSEPH NEMETH, PETITIONER-RESPONDENT,
v.
OTIS ELEVATOR CO., INC., RESPONDENT-APPELLANT



Gaulkin, Sullivan and Foley. The opinion of the court was delivered by Gaulkin, J.A.D.

Gaulkin

[55 NJSuper Page 495] Claiming that he was injured on January 4, 1954, Joseph Nemeth filed his petition for workmen's compensation on June 12, 1954. He failed to prosecute his claim, and upon notice (given pursuant to R.S. 34:15-54 as amended by L. 1947, c. 267), the petition was dismissed in the Division on March 5, 1957. Almost a year later, on February 24, 1958, Nemeth's attorney served notice of application for an order restoring the claim petition to the trial calendar. The notice stated that the motion was being made pursuant to said statute "upon the ground that there is a causal relationship between the injuries sustained

by petitioner, which arose out of and in the course of his employment * * *" [sic].

The only affidavit submitted in support of the motion was one sworn to by petitioner's attorney. That affidavit offered not one word of explanation for the failure to prosecute, the acquiescence in the dismissal, or the delay in making application to re-open. The affidavit merely said that "unless this application * * * is granted the petitioner's cause of action will be barred by the Statute of Limitations, and the petitioner will be deprived of his day in court * * * Your deponent [the attorney] further states that he is advised that the petitioner has a meritorious cause of action * * *."

Upon the return day of the motion to reinstate, petitioner's counsel mentioned that petitioner had theretofore been represented by other counsel, but nothing was presented to the deputy to account for the want of prosecution, the acquiescence in the dismissal, or the delay. Nevertheless the deputy granted the motion. He said:

"There is no question in my mind there has been laxity on behalf of the moving party, either through the fault of the petitioner, or to a degree from counsel * * *

It would be speculation as to where the fault may lie and I am not here to speculate. * * *

I realize there has been laxity, delay, undoubtedly unnecessary delay * * * However, I do not wish the petitioner to be deprived of his day in court * * * I feel my duty is to the petitioner, to give him his opportunity to have his day in court and I will grant the motion to restore * * *"

The employer appealed to the County Court from the resulting order. The County Court affirmed, in spite of the fact that Nemeth produced nothing more before the County Court than he had in the Division. From the judgment of the County Court the employer now appeals to this court, pursuant to leave granted under R.R. 2:2-3.

At the oral argument before us Nemeth's counsel was unable to give us any reason for the lack of prosecution or

for the acquiescence in the dismissal until more than four years after the alleged injury, except the hypothesis that perhaps the previous attorneys did not have as much confidence in the case as present counsel has.

Appellant contends that under R.S. 34:15-54, as amended, a petition may be reinstated only upon "good cause shown," and that here there was nothing before the lower tribunals which constituted good cause justifying the reinstatement. Respondent, on the other hand, argues that (1) restoration to the list is a matter that lies within the judicial discretion of the deputy, reviewable only for abuse; (2) the fact that the statute had run against a new petition is in and of itself "good cause" for reinstatement under the statute; and (3) even if it ...


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