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Ullmann v. Hartford Fire Insurance Co.

Decided: May 3, 1965.

WILLIAM L. ULLMANN, N. GREGORY SILVERMASTER AND HELEN P. SILVERMASTER, PLAINTIFFS-APPELLANTS,
v.
HARTFORD FIRE INSURANCE COMPANY, DEFENDANT-RESPONDENT



Gaulkin, Foley and Collester. The opinion of the court was delivered by Gaulkin, S.j.a.d.

Gaulkin

[87 NJSuper Page 412] On January 15, 1965 the trial judge ordered that by 2 P.M. of that day plaintiffs "appear in Newark * * * and provide defendant with whatever forms are necessary to enable said defendant to obtain from the Internal Revenue Service any information as to whether the said plaintiffs have filed income tax returns for the years 1962 and 1963 and whether any extensions for the filing of said returns have been granted; * * * [and] with certified copies of the Surrogate's Certificate showing the appointment of Helen (Mrs. N. Gregory) Silvermaster as Executrix of the estate of N. Gregory Silvermaster, deceased, so that defendant can obtain from the Internal Revenue Service information as to whether N. Gregory Silvermaster filed income tax returns for the

years 1962 and 1963 or whether any extensions for the filing of said returns have been granted; * * * [and] That the accountant for the plaintiffs be produced in Newark * * * in the event that the Internal Revenue Service requires any counter-signature from the said accountant for any of the foregoing; and That upon default of plaintiffs performing all of the foregoing by two o'clock in the afternoon of January 15, 1965 the Court will enter an Order dismissing the plaintiffs' Complaint herein; * * *."

We granted plaintiffs leave to appeal.

The complaint, filed June 19, 1962, alleged a claim upon a windstorm policy for damage which occurred on March 6, 1962. Defendant's answer denied that the damage was due to an insured risk. The pretrial order stated defendant's contention to be that the damage was done by "wave wash or other water damage, such as surface water, waves, overflow of bodies of water or some similar occurrence."

On April 4, 1963, on defendant's motion and over plaintiffs' opposition, the court ordered plaintiffs to produce for inspection and copying plaintiffs' 1961 and 1962 federal income tax returns. We have examined the moving papers upon which this order was entered and find therein no justification for the order.

It appears that plaintiffs had filed no return for 1962 and that they objected to disclosing those portions of the 1961 returns which had no relation to their claim. Nevertheless, on July 24, 1963 the court ordered their production "in their entirety." Plaintiffs then produced their 1961 returns for inspection, and on January 13, 1964 an order was entered "that plaintiffs furnish the defendant with full and complete copies of their 1962 Federal Income Tax Returns, by requesting copies thereof from the Internal Revenue Service, when same have been filed * * *."

On November 19, 1964 defendant moved for an order to compel plaintiffs to produce proof that they had not filed income tax returns not only for 1962 but for 1963 as well. When plaintiffs insisted that none had been filed, the court

entered an order which provided "that the plaintiffs submit to the defendant a certified copy, or copies of any extensions of time granted to them or any of them by the Director of Internal Revenue for the filing of their 1962 and 1963 Federal Income Tax Returns within 14 days of this date." Plaintiffs having failed to comply with the order of November 19, defendant obtained the order now appealed from.

Discovery is intended to expedite a fair trial. It is not to be used to delay one, or to harass the adversary. Unless there is substantial reason to disbelieve a party, his statement under oath that he has filed no return should suffice, and he should not be ordered to prove it as was done here. DiBiasso v. Gonsenhauser, 36 Misc. 2 d 799, 232 N.Y.S. 2 d 888, 889 (Sup. Ct. 1962); cf. Blanchet v. Colonial Trust Company, 23 F.R.D. 118, 120 (D.C. Del. 1958); Louisville & Nashville R.R. Co. v. Blevins, 293 S.W. 2 d 246, 250 (Ky. Ct. App. 1956).

In order to pass upon the propriety of the order appealed from, it was necessary for us to examine the propriety of the orders of January 13 and November 19, 1964. We hold that these orders should not have been entered. Consequently, the order now appealed from, which was intended to compel immediate compliance with those orders, is reversed without regard to its own objectionable features.

Defendant's motions were predicated upon R.R. 4:24-1, which requires an applicant to show "good cause" for the inspection he seeks. "Unlike other modes of discovery, not similarly qualified, which cast the burden of resisting relief upon the respondent, the applicant must establish affirmatively the ...


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