Healy v. Sayre

• Decision Date: 27 September 1934
• Docket Number: No. 98.,98.
• Citation: 174 A. 534
• Parties: HEALY v. SAYRE et al.
• Court: New Jersey Supreme Court

174 A. 534

HEALY

v. SAYRE et al.

No. 98.

Court of Errors and Appeals of New Jersey.

Sept. 27, 1934.

Syllabus by the Court.

1. The written interrogatories and written answers contemplated by section 140 of the Practice Act, 3 Comp. St. 1910, p. 4097, § 140, constitute an integer, and, when introduced at the trial, are to be introduced as a whole unless the parties otherwise agree.

2. The owner of a premises having given to another certain lamp posts embedded in concrete steps located on said premises upon condition that the donee remove the same, and the donee having subsequently, by an independent contractor, effected the removal, held, that under the established rule relating to independent contractors the owner is not responsible for the creation of a nuisance consisting of scattering and leaving the debris from the work upon the public sidewalk.

3. Where a public nuisance consists of the continued presence of foreign materials upon a public sidewalk, part of the highway, an abutting owner not responsible for the creation of the nuisance and without actual knowledge either in himself or his agents of its existence is not rendered liable by the mere fact that he, as such abutting owner, could have entered upon the sidewalk and abated the nuisance had he knowledge of its existence.

Appeal from Supreme Court.

Action by Helen Healy against Arthur L. Sayre, and another, as executors of the last will and testament of Margaret J. Sayre, and another. From a judgment of the Supreme Court affirming a judgment of the circuit court in favor of plaintiff, defendants appeal.

Judgment reversed.

William H. Campbell, Jr., of Newark, for appellants.

Bernard Freedman, of Newark, for respondent.

CASE, Justice.

The appeal is from a judgment of the New Jersey Supreme Court affirming a judgment of the Essex county circuit court in favor of the plaintiff and against the defendants. The action was for personal injuries sustained by the plaintiff on December 1, 1930, when she fell upon the sidewalk in front of a property in the city of Newark owned by Margaret J. Sayre. Mrs. Sayre died during the progress of the suit, and her executors were substituted in her stead. Her son, Arthur L. Sayre, is brought in as a defendant both individually and as one of the executors.

Mrs. Sayre's building was back a few feet from the sidewalk. It was a combined dwelling and store, and was occupied under lease by a tenant who had accepted the function of sweeping and cleaning the sidewalk. The entrance to the store was by concrete steps located on the premises. Into the lowest step were formerly embedded lamp posts, one on each side. Mrs. Sayre was, and had been, in Florida, and had no actual knowledge of the events about to be related. In response to a request from a Mrs. Reinhardt, Arthur Sayre gave to the latter the lamp posts upon the condition that she would remove them. Mrs. Reinhardt agreed to that condition and procured the removal on or about November 26, 1930, by one Demarest. On December 1, 1930, at 11 p. m., plaintiff, in walking on the public sidewalk in front of the premises, stumbled over some fragments of loose stone and was injured.

It is first contended by the defendants that error was committed by the trial court in admitting, over their objection, certain of the interrogatories propounded to and answered by them without compelling all of the interrogatories and the respective answers to be introduced. That question was considered by this court in Seinner v. Public Service, etc., Transport, 107 N. J. Law, 159, 151 A. 624, wherein it was said that the statute upon which the practice is based (section 140 of the Practice Act, 3 Comp. St. 1910, p. 4097 § 140) contemplates the introduction of the whole answer unless the parties otherwise agree. The reasoning of that opinion is that the various responses made by a party to a set of interrogatories proposed by the opposing party constitute a single paper designated as the "answer," that the opportunities for striking immaterial questions or irresponsive replies and of amending both the interrogatories and the answers are such that the interrogatories and the answers, as they are at the time of trial, are presumed in the one case to be material and in the other to be responsive. We consider that that reasoning is sound, and conclude that the entire answer, meaning the full set of responses, together with the eliciting interrogatories, should have been admitted or none should have been admitted; the parties not having otherwise agreed. In Cetofonte v. Camden Coke Co., 78 N. J. Law, 662, 75 A. 913, 27 L. R. A. (N. S.) 1058, and Beakly v. Freeholders, 81 N. J. Law, 637, 80 A. 457, Ann. Cas. 1912D, 119, such answers as were not admitted in evidence were so clearly not material as to overcome the presumption, and the rejection was not harmful error. In the instant case at least some of the rejected interrogatories and responses were, in our opinion, material. For instance, plaintiff introduced the fifth interrogatory propounded to Mr. Sayre, "In what capacity, if any, were you in charge of the aforesaid premises?" together with the response, "Collector." The sixth interrogatory, clearly intended to ascertain whether the function covered by the preceding question was by Mrs. Sayre's employment, was, "Were you employed by the said Margaret J. Sayre to take charge of said premises, or were you her duly and authorized agent?" and the response was in the negative. The subject-matter was material to the issue and modified what went before. The sixth interrogatory and response were rejected. The fact that some of the information contained in the responses that were rejected later came into the case from the lips of witnesses does not free the ruling of its error, inasmuch as it was the right of the defendants, some of the matters being admitted, to have the jury know that the remaining responses made by...