Gnapinsky v. Goldyn, No. A--5

CourtUnited States State Supreme Court (New Jersey)
Writing for the CourtWEINTRAUB; VANDERBILT
Citation128 A.2d 697,23 N.J. 243
PartiesMary GNAPINSKY, Plaintiff-Appellant, v. Sophie GOLDYN and Eva Hamot, Defendants-Respondents.
Decision Date21 January 1957
Docket NumberNo. A--5

Page 243

23 N.J. 243
128 A.2d 697
Mary GNAPINSKY, Plaintiff-Appellant,
v.
Sophie GOLDYN and Eva Hamot, Defendants-Respondents.
No. A--5.
Supreme Court of New Jersey.
Argued Dec. 10, 1956.
Decided Jan. 21, 1957.

Page 246

[128 A.2d 699] Herman B. Packer, Passaic, for appellant (Feder & Rinzler, Passaic, attorneys; Joseph A. Feder, Passaic, of counsel; Herman B. Packer, Passaic, on the brief).

Page 247

Morris Pashman, Passaic, for respondent Sophie Goldyn (Joseph A. Banas, Jr., Wallington, on the brief).

No appearance for respondent Eva Hamot.

The opinion of the court was delivered by

WEINTRAUB, J.

Plaintiff sued for slander. The case was tried in the Passaic County District Court without a jury. At the close of plaintiff's case, motions for judgment of dismissal were granted.

Plaintiff appealed to the Appellate Division. The statement of proceedings (R.R. 1:6--3) was settled by the trial judge on June 1, 1955. Plaintiff's brief was due 30 days thereafter, R.R. 1:7--12(a) and 2:7--3, but plaintiff did not file it or seek an extension of time. On August 16 defendants moved to dismiss the appeal for failure to comply with the cited rule, and in response plaintiff filed her brief on August 24, five days before the argument of the motion. The Appellate Division dismissed the appeal, and on plaintiff's petition we granted certification to review the order of dismissal.

Upon the argument of the appeal we decided to hear the meritorious issues as well, to the end that if the order of the Appellate Division be reversed, there would be no further delay in this matter. Additional briefs were filed and argument had.

I

That plaintiff failed to comply with the rules is of course evident, and the reasons given are hardly moving. Where a legitimate basis for further time exists, the proper course is a seasonable application for an extension, and no explanation is advanced for plaintiff's failure to seek one.

The rules of court are designed to expedite litigation and are intended for the equal benefit of all parties. The failure of one side to comply precipitates motions which not only consume the time of the courts and delay justice to other

Page 248

litigants, but as well waste the time of counsel which could be devoted with profit to other matters. There are situations in which relief from the prescribed timetable is warranted, and authority is provided for relaxation of [128 A.2d 700] the rule in appropriate cases. R.R. 1:27A and 1:27B. But the discretion is to be exercised by the courts and not by the unilateral decision of counsel for one of the parties. By reason of counsel's infraction, defendants were unfairly put to the burden of a motion to dismiss and the subsequent proceedings before us with reference to the motion, none of which has contributed to a solution of the issues which interest the clients.

Although we agree the reasons advanced by plaintiff for failure to comply with the rule do not attract sympathetic response and are mindful of the needless trouble to the other parties, yet we are reluctant to approve the dismissal of an appeal where the brief was in fact filed in response to the motion and before argument thereon. The effect of a dismissal is to impose too great a penalty upon a litigant who doubtless was personally blameless. There may be situations in which dismissal is the necessary sanction, but where other measures will fairly adjust such Mesne controversies a dismissal should not be ordered. Hence we feel constrained to reverse the order of dismissal without costs in this court in favor of plaintiff, and indeed with costs in favor of defendant Goldyn, both in the Appellate Division and here, with respect to the motion to dismiss and the review of the order of dismissal.

II

This brings us to the merits. There was no stenographic record below and hence the validity of the judgments must be tested on the basis of the statement of proceedings settled by the trial judge.

In the statement we find plaintiff's case against defendant Hamot consisted of this: Plaintiff had known Mrs. Hamot for 25 years. They were co-employed at a handkerchief

Page 249

factory, where on July 13, 1954 plaintiff, while working at a bench ten feet from Mrs. Hamot, heard her say to a Mrs. Kulik, both of whom had their backs to plaintiff:

'Where does Mary have any brains; she has her own man, and she had a baby with another man.'

Plaintiff said she heard Mrs. Hamot add that she knows this from the co-defendant Goldyn, and that Mrs. Kulik said something which plaintiff did not catch.

Plaintiff did not produce Mrs. Kulik and hence we do not know from her to whom she understood the statement applied.

As to defendant Goldyn, plaintiff testified she had known defendant for 25 or 27 years; that she had not talked with defendant for 16 years except for one occasion about two years before trial and again in October 1953, when she 'told Mrs. Goldyn not to talk about her' (about what, we are not informed) and that Mrs. Goldyn denied talking about her. Plaintiff said that on July 16, 1954, about 11:30 p.m., while on the porch of the house in which she lived, she overheard defendant say to a Mrs. Puzio, both being on the sidewalk and unaware that plaintiff was listening:

'Mary said she didn't have a baby with another man. If she was that way, she would call him over and he would say it's the truth.'

Mrs. Puzio was not called as a witness and hence we do not know what she understood by the quoted statement or to whom she understood it to relate.

Plaintiff further testified that she has been married for 24 years; that one child was born of the marriage; that two years later she was pregnant and in the third month she and her husband arranged for an abortion which was had.

The trial judge granted the motions on the ground that there was no evidence of publication as to plaintiff, that is, that Mrs. Kulik or Mrs. Puzio understood the statements to refer to plaintiff, and as to defendant Goldyn, on the further ground that [128 A.2d 701] the statement attributed to her is 'vague,

Page 250

unintelligible and difficult of construction, and hence, it fails to spell out a case of slander.'

Defendant Hamot has not responded to the appeal, but of course her interests are nonetheless before us. Peschek v. Teissere, 30 N.J.Super. 248, 104 A.2d 58 (App.Div.1954). Defendant Goldyn urges a number of bases to uphold the judgment, of which only two require consideration: (1) that an imputation of unchastity is not actionable Per se, and (2) there was no evidence that the alleged slander related to plaintiff.

III

It is not clear that there is necessarily before us the question whether a slander imputing unchastity is actionable Per se. The statement of proceedings informs us that 'all proofs of the plaintiff and her husband directed towards damages are left out in this Statement' because of the grounds upon which the judgments were based. We cannot tell whether plaintiff proved the special damages which would make the proffered issue academic. Prosser, The Law of Torts (2d ed. 1955), § 93, p. 593. Nonetheless, since plaintiff did not suggest before us that the proof was of a nature to obviate the issue, we will deal with it.

The law of defamation is burdened with quaint distinctions of historical genesis. With respect to slander, as distinguished from libel, there are three categories of false statements which are generally deemed to be actionable Per se, that is, without charge or proof of special damages, namely, words which (1) charge commission of a crime...

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46 practice notes
  • Taj Mahal Travel, Inc. v. Delta Airlines, Inc., No. 97-5652
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 30 Diciembre 1998
    ...who saw or read it was familiar with the circumstances and reasonably believed that it referred to the plaintiff.' " Gnapinsky v. Goldyn, 23 N.J. 243, 128 A.2d 697, 703 (N.J.1957) (quoting Restatement of Torts § 564 cmt. b (1938)); see also Dijkstra v. Westerink, 168 N.J.Super. 128, 401 A.2......
  • Simmons v. Beyer, Civ. A. No. 86-4274.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • 5 Julio 1988
    ...a desire to appeal after his conviction no seasonable application was filed with the Appellate Division. See Gnapinsky v. Goldyn, 23 N.J. 243, 128 A.2d 697 (1957). Under these circumstances it cannot be concluded that the Appellate Division abused its discretion in denying relief and dismis......
  • Schiavone Const. Co. v. Time, Inc., Civ. A. No. 83-932.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • 1 Octubre 1985
    ...e.g., Hoagburg v. Harrah's Marina Hotel, 585 F.Supp. 1167, 1170 (D.N.J. 1984); Dorney, supra, 149 F.Supp. at 619; Gnapinsky v. Goldyn, 23 N.J. 243, 250, 128 A.2d 697 (1957); Arturi v. Tiebie, 73 N.J.Super. 217, 222, 179 A.2d 539 (App.Div. 1962). Moreover, the fact that a crime is not explic......
  • Ward v. Zelikovsky
    • United States
    • Superior Court of New Jersey
    • 13 Abril 1993
    ...person in his business, trade, profession or office, or (4) impute unchastity to a woman. Gnapinsky v. Goldyn, supra, [23 N.J ] at p. 250 [128 A.2d 697]. If the defamatory statements are not within any of these four categories, plaintiff must prove that the utterance thereof was the legal c......
  • Request a trial to view additional results
46 cases
  • Taj Mahal Travel, Inc. v. Delta Airlines, Inc., No. 97-5652
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 30 Diciembre 1998
    ...who saw or read it was familiar with the circumstances and reasonably believed that it referred to the plaintiff.' " Gnapinsky v. Goldyn, 23 N.J. 243, 128 A.2d 697, 703 (N.J.1957) (quoting Restatement of Torts § 564 cmt. b (1938)); see also Dijkstra v. Westerink, 168 N.J.Super. 128, 401 A.2......
  • Simmons v. Beyer, Civ. A. No. 86-4274.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • 5 Julio 1988
    ...a desire to appeal after his conviction no seasonable application was filed with the Appellate Division. See Gnapinsky v. Goldyn, 23 N.J. 243, 128 A.2d 697 (1957). Under these circumstances it cannot be concluded that the Appellate Division abused its discretion in denying relief and dismis......
  • Schiavone Const. Co. v. Time, Inc., Civ. A. No. 83-932.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • 1 Octubre 1985
    ...e.g., Hoagburg v. Harrah's Marina Hotel, 585 F.Supp. 1167, 1170 (D.N.J. 1984); Dorney, supra, 149 F.Supp. at 619; Gnapinsky v. Goldyn, 23 N.J. 243, 250, 128 A.2d 697 (1957); Arturi v. Tiebie, 73 N.J.Super. 217, 222, 179 A.2d 539 (App.Div. 1962). Moreover, the fact that a crime is not explic......
  • Ward v. Zelikovsky
    • United States
    • Superior Court of New Jersey
    • 13 Abril 1993
    ...person in his business, trade, profession or office, or (4) impute unchastity to a woman. Gnapinsky v. Goldyn, supra, [23 N.J ] at p. 250 [128 A.2d 697]. If the defamatory statements are not within any of these four categories, plaintiff must prove that the utterance thereof was the legal c......
  • Request a trial to view additional results

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