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Klimowich v. Klimowich

Motion and Appeal Decided: February 15, 1965.

PETER KLIMOWICH AND HELEN KLIMOWICH, A/K/A HELEN OLDAKER, PLAINTIFFS-RESPONDENTS,
v.
EDWARD KLIMOWICH AND CLAIRE KLIMOWICH, HIS WIFE, DEFENDANTS-APPELLANTS



Conford, Kilkenny and Lewis.

Per Curiam

On a motion for leave to appeal an order of the Chancery Division denying a number of motions by defendants, (a) to take certain out-of-time discovery steps in the cause, (b) for change of venue (denied on previous motion), and (c) to be permitted to make a late response to a demand for admissions pursuant to R.R. 4:26-1, this court denied the motion except in respect of the matter of admissions. Leave to appeal was granted in the latter regard, and, with the consent of the parties, the matter was submitted forthwith on the moving and answering papers on the motion and the argument had thereon.

We need not discuss the portion of the motion for leave to appeal denied except to repeat the admonition in Romano v. Maglio, 41 N.J. Super. 561, 567 (App. Div. 1956), certification denied 22 N.J. 574 (1956), certiorari denied 353 U.S. 923, 77 S. Ct. 682, 1 L. Ed. 2 d 720 (1957), that we will rarely grant interlocutory appeal in relation to orders dealing with discovery.

In this action by plaintiffs to obtain relief for the alleged fraudulent despoilment of their late father's fortune by defendants, brother and sister-in-law of plaintiffs, the complaint and answer were filed, respectively, in March and April 1964. On June 11, 1964 defendants were served with plaintiffs' request for admissions, and on June 24, 1964 with a supplemental

request for admissions. These were not answered until August 10, 1964, but the answers then supplied by defendants were promptly returned by the attorney for plaintiffs on the ground they failed to comply with the rule "either as to time or form." The requests for admissions are not before us, but it seems agreed that they called for responses within 20 days, as permitted by the rule, R.R. 4:26-1. And we are told that the answers furnished August 10, 1964 were not sworn to, as also called for by the rule. Defendants were thus in default of compliance with the rule.

In November 1964 a notice of pretrial conference for December 22, 1964 was forwarded by the trial judge to the parties. Plaintiffs then made a motion to dismiss defendants' notice to take oral depositions as late. Defendants countermoved for the relief denied by the trial court, mentioned above. The denial of the motion for extension of time for service of answers to plaintiffs' requests for admissions was stated by the trial court to be for the reason that: "I can't give any relief under the rule. The rule itself is self-executing." In so ruling, however, the judge left open for determination at the trial the effect of the failure timely to answer the requests.

At our request at the argument defendants have filed sworn answers to the requests. The great majority of the admissions sought are conceded. However, defendants deny requests to admit that checks purportedly signed by the decedent against his bank account aggregating some $7,000 were forgeries and were not signed by decedent. In the light of the factual background of the case, an admission by defendants that the checks in question were forgeries would substantially undermine their defense to the action.

So far as here material, R.R. 4:26-1 provides:

"* * * [A] party may serve upon any other party a written request for the admission by the latter * * * of the truth of any relevant matters of fact set forth in the request, whether or not the matters lie within the personal knowledge of the latter. * * * Each of the matters of which an admission is requested shall be deemed

admitted unless, within a period designated in the request, which period shall be not less than 20 days after service thereof, or within such shorter or longer period as the court may allow on motion and notice, the party to whom the request is directed serves upon the party requesting the admission either (a) a sworn statement denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully admit or deny those matters, or (b) written objections that some or all of the requested admissions are privileged or irrelevant or that the ...


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