Duffy, J.c.c. (temporarily assigned).
This matter is presently before the court on plaintiff's order for defendant to show cause why she should not be enjoined from proceeding with a suit instituted in New York and why she should not produce their infant daughter for depositions pursuant to a suit started in New Jersey for an accident common to both suits. Plaintiff also sought attorney's fees and costs on this motion.
A brief statement of the facts will suffice. On April 11, 1967 a judgment nisi was entered for plaintiff Herbert Jacobs against defendant Rosalyn Jacobs. Defendant was awarded custody of the two minor children of the marriage. The judgment provided that plaintiff was to pay support and all medical payments.
Before the divorce was granted the parties' infant child Debora was injured at the litigant's apartment building, Carlton Towers, located in Passaic, New Jersey. The owner of the building is Carlton Tower Company, a partnership
having its principal office in New York City. The managing of the building is handled by Delta Sales Corp., a Mississippi corporation authorized to do business in New York. The manufacturer of the gate mechanism which allegedly caused the injury is Auto-Magic Door Opener Corp., a New York corporation. The injured child was treated in Passaic, where both defendant and the child live in Passaic, New Jersey.
On June 13, 1967 defendant instituted a suit in New York for damages and compensation against Carlton Tower Company. Defendant joined Auto-Magic Door Opener Corp., and Delta Sales Corp. as parties defendant.
Subsequent to the New York action, plaintiff began an action in New Jersey against Carlton Towers. Plaintiff's objections to the New York action and his attempted discovery are the basis for this motion. It is noted that defendant has made application in another New Jersey court for dismissal of plaintiff's action. This latter motion has been held in abeyance until our determination of plaintiff's motion.
At the outset it is noted that at the hearing of the present motion defendant's New York attorneys were permitted to appear pro hac vice. The attorneys for Carlton Towers were also heard as amicus curiae. At the hearing defendant's attorneys made the representation that plaintiff would be reimbursed for any out-of-pocket expenses incurred for medical expenditures. Plaintiff argues that he would nevertheless be prejudiced in that he is required to pay for support and medical expenses and should derive the benefit of any award of damages in view of his obligation. He also cites his responsibility in obtaining major medical insurance.
It appears that this court must resolve two issues: (1) whether a mother having custody of her infant child can maintain an action for damages stemming from a tortious injury to the child, and (2) whether the father's subsequent suit in another jurisdiction may supersede the mother's suit, thereby enabling the father to enjoin the first suit.
A parent may institute an action as guardian ad litem for injuries to the minor child, and a parent may also sue independently for loss of ...