Gill v. Stolow, No. 106
| Court | U.S. Court of Appeals — Second Circuit |
| Writing for the Court | CLARK, , and MEDINA and WATERMAN, Circuit |
| Citation | 240 F.2d 669 |
| Docket Number | Docket 24248.,No. 106 |
| Decision Date | 07 February 1957 |
| 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. |
240 F.2d 669 (1957)
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.
No. 106, Docket 24248.
United States Court of Appeals Second Circuit.
Argued January 21, 1957.
Decided February 7, 1957.
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.
CLARK, Chief Judge.
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...
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