Conford, Labrecque and Halpern.
Plaintiff Herbert Jacobs petitioned the Superior Court, Chancery Division to order his divorced wife, defendant Rosalyn Jacobs, to show cause why she should not produce their minor daughter Debora for depositions and be restrained from further proceeding with an action instituted by her in New York seeking redress for injuries sustained by Debora in 1966. From the denial of the requested relief plaintiff brings this appeal.
Two children, Marsha and Debora, were born of the marriage between the parties. On May 22, 1966, while playing in the parking lot adjoining their apartment (Carlton Towers) in Passaic, Debora's left hand became caught in
an electronically activated mechanical gate which guarded the parking lot entrance, causing allegedly severe and permanent injuries. Extensive medical treatment was required, the cost of which was discharged by or on behalf of Herbert, the father. Debora is still receiving treatment and while we are uninformed as to the extent thereof Herbert apparently continues to pay for her treatment.
Some time after the accident, Herbert instituted a divorce action against his wife. On April 11, 1967, a judgment nisi was entered in the Chancery Division granting the divorce. Custody of the children was awarded to Rosalyn. Herbert was ordered to pay the sum of $75 weekly for their support and maintenance and to "pay for all medical, dental, hospital, drug and nursing bills for said minor children." A property settlement agreement entered into by the parties was incorporated into the decree. Under the agreement Herbert further agreed to "pay any * * * medical * * * bills incurred by Wife or the children which are or may be still unpaid, incurred prior to the entry of the order for support in the divorce action."
On June 13, 1967, Rosalyn, through New York attorneys, instituted an action in New York seeking redress for Debora's injuries. The complaint sought recovery for Debora's injuries as her guardian ad litem. It also contained a claim for the loss of her services and for medical expenses. Named as parties defendants were the owners of the apartment, Carlton Tower Company, a partnership having its principal office in New York, the managers of the apartment, Delta Sales Corporation, a Mississippi corporation authorized to do business in New York, and Auto-Magic Door Opener Corporation, a New York corporation which had manufactured, installed and maintained the mechanical gate.
On August 1, 1967 Herbert instituted a second action, in his own right and as guardian ad litem for Debora, in the Law Division, Passaic County against Carlton Tower Company, for the child's injuries. In his individual claim he sought recovery for loss of the child's services and for medical expenses.
Carlton Tower Company answered Herbert's complaint through its New Jersey attorneys. They thereafter sought to take Debora's deposition but were informed by Herbert's attorney that Rosalyn, upon the advice of her New York attorneys, would not produce her.
Herbert thereupon filed the present petition to compel production of the child and restrain defendant from further proceeding with the New York action. In denying the relief sought the court ruled that under N.J.S.A. 9:1-1 Rosalyn was the proper party to sue for loss of the child's services; that while the parent who actually pays for medical expenses caused or incurred as the result of tortious conduct is entitled to recover such expenditures, here Rosalyn had unequivocally represented to the court at the hearing that Herbert would be reimbursed for such expenditures, therefore she and not Herbert should be permitted to maintain the action for medical expenses.
Absent from the opinion is discussion of the court's reasons for denying the request that the child be produced for deposition by Carlton Tower Company. Since the propriety of the denial has not been briefed or argued, and will become moot because of the disposition of this appeal, we need not be concerned with it. R.R. 1:7-1 (c); Cannon v. Krakowitch, 54 N.J. Super. 93, 96 (App. Div. 1959)
Parenthetically, we note that Carlton Tower Company has moved to dismiss Herbert's action against it in the Law Division. Argument on that motion has been ...