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Dougherty v. Gellenthin

Decided: January 26, 1968.

WILLIAM F. DOUGHERTY, JR., AN INFANT, BY HIS GUARDIAN AD LITEM WILLIAM F. DOUGHERTY, SR., WILLIAM F. DOUGHERTY, SR., INDIVIDUALLY, AND AGNES GERLT, PLAINTIFFS,
v.
GEORGE GELLENTHIN AND RUTH GELLENTHIN, HIS WIFE, GEORGE A. GELLENTHIN AND HOWARD L. BLESSINGTON, DEFENDANTS. GEORGE A. GELLENTHIN, III, AN INFANT, BY HIS GUARDIAN AD LITEM GEORGE A. GELLENTHIN, JR.; AND GEORGE A. GELLENTHIN, JR. AND RUTH GELLENTHIN, HIS WIFE, INDIVIDUALLY, PLAINTIFFS, V. HOWARD L. BLESSINGTON, DEFENDANT



Muccifori, J.c.c. (temporarily assigned).

Muccifori

Defendant Blessington moves before this court to obtain a true copy of the testimony taken by Peter A. Lumia, certified shorthand reporter, at the municipal court hearing held in connection with motor vehicle summonses issued as a result of the motor vehicle accident which gives rise to the instant suit.

On that occasion defendant Blessington as well as other persons, including defendant George A. Gellenthin and plaintiff William F. Dougherty, Jr., testified before the

court. Reporter Lumia was, on October 3, 1966, hired by the law firm of Haines, Schuman and Butz, attorneys for plaintiffs, to take the testimony at the municipal court hearing. At the express request of plaintiffs' attorney, the reporter was not sworn by the magistrate.

Subsequent to October 3, 1966 Lumia was requested to furnish a copy of the transcript to the attorneys for defendant Blessington. He did not do so, on the order of plaintiffs' attorney.

Plaintiffs Dougherty resist the application, relying on Kaplan v. Jones, 77 N.J. Super. 31 (Law Div. 1962), where the court determined that the transcript of such a municipal court hearing constituted a work product and was not the subject of discovery "unless good cause be shown."

Defendant Blessington argues that by virtue of the amendment of R.R. 8:7-5(a) on December 9, 1963, the Kaplan case is no longer controlling, and further, that in any event this court is not bound by that decision since it was rendered by a court of concurrent jurisdiction. State v. Patfol, Inc., 71 N.J. Super. 404, 407-408 (Law Div. 1961), reversed on other grounds 76 N.J. Super. 287 (App. Div. 1962), reargument denied 76 N.J. Super. 572 (App. Div. 1962). Defendant says that at the time Kaplan was decided no official transcript of the proceedings could be made unless and until the certified shorthand reporter was sworn by the magistrate, and that by virtue of the 1963 amendment, that requirement was dispensed with in cases where a certified shorthand reporter reported the proceedings. He further alludes to the November 24, 1966 issue of the New Jersey Law Journal wherein the following statement of the Administrative Director appeared:

"It has been called to the attention of the Administrative Office of the Courts that in some instances shorthand reporters engaged by a party make a record of only part of the hearing, as for example, only the State's case or only the defendant's case. Such practice is improper and it is the duty of the magistrate to see that if a record of the hearing is to be made, that the entire hearing be officially recorded

in accordance with Rule 8:7-5. Upon request, the reporter taking the proceedings is required to furnish any party or the magistrate with a transcript upon payment of the transcript rates set forth in N.J.S. 2A:11-15 (a). If an appeal is taken, the appellant is required to file the original transcript with the clerk of the appellate court and serve a copy on the prosecuting attorney in accordance with Rule 3:10-10 (a)."

Blessington's position is that as a result of the foregoing rule change and administrative directive, any transcript of a municipal court proceeding made by a certified shorthand reporter is now rendered an official transcript to which he would be entitled as a matter of course.

The court disagrees with these contentions. The quoted directive merely requires that if the services of a reporter are obtained, the entire proceeding must be reported. R.R. 8:7-5(a) provides that an official transcript may be had: (a) where the magistrate on his own motion, without request therefore being made by any party or other person, arranges for such a reporter or stenographer to make an official record of the proceedings, provided that the court has a fund for that purpose; or (b) at the request of any party, the magistrate shall permit an official record to be made; or (c) at the request of any person not a party, the magistrate may permit an official record to be made. It is clear that an official record may be made only in one of the three foregoing ways, none of which is present here. In fact, the magistrate was advised by plaintiffs' attorney not to swear in the certified shorthand reporter. Actually, it was unnecessary to make this ...


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