Gill v. Stolow
| Decision Date | 07 February 1957 |
| Docket Number | Docket 24248.,No. 106,106 |
| Parties | Robert J. GILL, Plaintiff-Appellee, v. Julius STOLOW and Harry Stolow, copartners, doing business under the firm name and style of J. & H. Stolow, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Second Circuit |
William E. Haudek, of Pomerantz, Levy & Haudek, New York City (Abraham L. Pomerantz, of Pomerantz, Levy & Haudek, and Manfred Wolkiser, New York City, on the brief), for defendants-appellants.
William Eldred Jackson, of Milbank, Tweed, Hope & Hadley, New York City (Rebecca M. Cutler, of Milbank, Tweed, Hope & Hadley, New York City, on the brief), for plaintiff-appellee.
Before CLARK, Chief Judge, and MEDINA and WATERMAN, Circuit Judges.
This appeal is from a judgment awarding plaintiff $18,000 damages, with interest and costs to an aggregate of about $27,500, in his action for breach of warranty and fraud in the sale of a stamp collection, and dismissing the defendants' counterclaim of $4,500 for stamps sold. This result was reached after a hearing in damages upon a default, which the court refused to reopen, D.C.S.D.N.Y., 18 F.R.D. 508, for failure of one of the defendants, Harry Stolow, to come to New York City from Munich, Germany, for the taking of his deposition. The basic issue on the appeal therefore is the court's disciplinary action under Fed.Rules Civ.Proc., rule 37(d), which provides, as its final and most drastic sanction, where a party "wilfully fails to appear" for the taking of his deposition after proper notice, for the entry of "a judgment by default against that party." The proper disciplining of a party under circumstances of default is one of those necessary, but troublesome, questions which usually must be left to the control of the trial judge in the course of his administration of his court. Reluctant as we are to interfere, we feel that this is an occasion where, viewed with the hindsight afforded us by a study of the entire record, the penalty assessed is too drastic and the case must be returned to accord defendants a trial of the seriously contested issues of fact involved. In final analysis, a court has the responsibility to do justice between man and man; and general principles cannot justify denial of a party's fair day in court except upon a serious showing of willful default.
The litigation here concerns the purchase by plaintiff of a supposedly unique collection of stamps which he now claims was fraudulently overvalued. For this deceit and breach of warranty he seeks substantial damages by this action brought in June 1951 in the diversity jurisdiction of the court below. One of the defendant partners, Harry Stolow, has lived in Munich during all the period involved and was not personally served in the action. Plaintiff sought as early as 1952 to take his deposition because he was said to have made the original purchase of the collection and to have known its cost. At that early period the court declined summary proceedings against him; and although now it is suggested that he and his co-defendant showed a consistent course of obstruction for more than three years, this seems to us, as we view the record, an overdrastic characterization. The problem of a witness coming from Munich to New York City at his own expense (since negotiations for other solutions fell through) can be serious, as we concluded in Hyam v. American Export Lines, 2 Cir., 213 F.2d 221, reversing an order compelling a plaintiff in Bombay to come to New York City for his deposition. Actually both parties were engaged throughout this preliminary period in taking numerous depositions; and violent wrangles developed, including charges of bribery of witnesses. One of these intermediate matters is noted in D.C.S.D.N.Y., 16 F.R.D. 9. While these interlocutory proceedings did demonstrate the need of a definite trial to settle the disputes separating the parties, we think the record does not show willful default on Harry's part, at least at this time. Nor do we think the delays and charges of bribery affecting the other depositions clearly enough demonstrated to nullify Harry's claim of lack of willfulness.
We come, therefore, to ...
To continue reading
Request your trial
-
Leab v. Streit, 83 Civ. 5232 (SWK).
...may be had and justice done. See Davis, 713 F.2d at 915 ("all doubts should be resolved in favor of those seeking relief"); Gill v. Stolow, 240 F.2d 669 (2d Cir.1957). The criteria that are applicable in deciding whether to vacate a default judgment have recently been recited by this Court,......
-
Trans World Airlines, Inc. v. Hughes, 883
...are far afield and demonstrate by negative implication the inevitability of the default in this case. For example, in Gill v. Stolow, 240 F.2d 669 (2d Cir. 1957), the court reversed the entry of a default only upon a showing of a "real attempt to comply" with an order requiring the witness ......
-
Williams v. Ward, 457
...at 55-233-36 & n. 21 (2d ed. 1976); 10 C. Wright & A. Miller, Federal Practice and Procedure §§ 2693, 2697 (1973); Gill v. Stolow, 240 F.2d 669, 670 (2 Cir. 1957); SEC v. Management Dynamics, Inc., 515 F.2d 801, 814 (2 Cir. 1975); Horn v. Intelectron Corp.,294 F.Supp. 1153, 1155 (S.D.N.Y.19......
-
Katz v. Morgenthau, 86 Civ. 0067 (CBM).
...such as illness and inability to hire a lawyer, petitioner failed to answer complaint within required sixty days); Gill v. Stolow, 240 F.2d 669, 672 (2d Cir.1957) (reversing default judgment upon showing that default was not Courts generally favor trial on the merits. Thus, even where doubt......
-
28 APPENDIX U.S.C. § 37 Failure to Make Disclosures Or to Cooperate In Discovery; Sanctions
...all rather severe, the courts have interpreted it as permitting softer sanctions than those which it sets forth. E.g., Gill v. Stolow, 240 F.2d 669 (2d Cir. 1957); Saltzman v. Birrell, 156 F.Supp. 538 (S.D.N.Y. 1957); 2A Barron & Holtzoff, Federal Practice and Procedure 554-557 (Wright ed. ......