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Ross v. Lewin

Decided: May 4, 1964.


Goldmann, Kilkenny and Collester. The opinion of the court was delivered by Kilkenny, J.A.D.


Plaintiff, an attorney and resident of California, sued defendant, a resident of New Jersey, in the Superior Court of New Jersey, Law Division, to recover the sum of $3,362.80 for legal services allegedly rendered in California for defendant and a California corporation in which defendant was interested, for which services, according to plaintiff, defendant personally promised to pay. The case was tried before a jury and resulted in a verdict in favor of plaintiff and against defendant for $3,362.80, the sum claimed.

Defendant appeals from the judgment based upon the jury's verdict. Though stated in various ways under four separate points, the basic contention of defendant is that the trial court should not have admitted into evidence plaintiff's own deposition in the form of answers to written interrogatories, taken pursuant to R.R. 4:21, as partial proof of plaintiff's cause of action.

Leave to take plaintiff's deposition and that of his office associate, upon written interrogatories in California for use at the trial, was granted by the trial court in advance of the trial, over defendant's objection. Defendant's attorney stated upon the application for that order that he would assent to use of depositions upon oral examination if his expenses were advanced (as plaintiff's attorney had offered to do), but he would not assent to having such advance made the subject of taxed costs to abide the result of the trial. Upon such refusal, the trial court allowed the taking of the deposition upon written interrogatories, as noted above. Defendant did not avail himself of the right to serve cross-interrogatories, as provided for in R.R. 4:21-1.

Plaintiff was still in California at the time of the trial, and by reason of his being out of the State the trial court permitted his deposition to be read into evidence before the jury, pursuant to R.R. 4:16-4(c). That rule, in part, and so far as pertinent here, provides:

"(c) The deposition of a witness, whether or not a party, may be used by any party for any purpose against any other party who was

present or represented at the taking of the deposition or who had due notice thereof, provided the court finds: (1) that the witness is dead; or (2) that the witness is out of the State, unless it appears that the absence of the witness was procured by the party offering the deposition; * * * or (5) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used."

It is not disputed that defendant had due notice that plaintiff's deposition was to be taken.

Defendant maintains that R.R. 4:21 and R.R. 4:16-4 were not intended to permit a party to take his own testimony upon written interrogatories for use at a jury trial. The plain language of these rules is contrary to defendant's contention. The deposition of any witness, "whether or not a party," may be used "by any party for any purpose," so long as the trial court finds existing one of the conditions for such use prescribed in R.R. 4:16-4(c). Plaintiff, a busy California attorney, was about 3000 miles distant from the scene of trial. Thus, his being out of the State and at such a great distance satisfied both the "out of the State" condition and the "exceptional circumstances" provision.

Defendant argues that plaintiff, by remaining in California, "procured" his own absence from the State at the time of trial, so as to make the "out of the State" provision inapplicable. It would be a distortion of the language of R.R. 4:16-4(c) to say that a California resident, engaged in the practice of the law there, had procured his absence from New Jersey, merely because he did not attend personally at the trial in New Jersey. Defendant's interpretation would preclude the use of the deposition of a nonresident party in his own behalf, notwithstanding his absence from the State and no matter how far removed from the place of trial, so long as he was physically able to come to New Jersey. We are satisfied that such was not the intention of the Supreme Court in framing R.R. 4:16-4(c), the modern and more liberal counterpart of the former practice of testimony de bene esse

and testimony by commission. See Harris, Pleading and Practice in New Jersey ...

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