Wolters v. Fid. Trust Co.

• Decision Date: 11 June 1900
• Citation: 46 A. 627,65 N.J.L. 130
• Parties: WOLTERS v. FIDELITY TRUST CO. (two cases).
• Court: New Jersey Supreme Court

46 A. 627

65 N.J.L. 130

WOLTERS

v. FIDELITY TRUST CO. (two cases).

Supreme Court of New Jersey.

June 11, 1900.

(Syllabus by the Court.)

Actions by Christian R. Wolters and Frederick R. Wolters against the Fidelity Trust Company. Motions to strike out certain interrogatories. Granted in part.

Argued February term, l'JOO, before LUDLOW, COLLINS, and DIXON, JJ.

Oscar Keen and H. V. Lindabury, for plaintiffs. T. N. McCarter and T. N. McCarter, Jr., for defendant.

DIXON, J.This suit is based upon an alleged contract by which the plaintiff sold to the defendant certain shares of stock in the Newark Gas Company, and the defendant paid therefor $155 a share, and agreed that, in case any other shares of stock in that company should be purchased by or on behalf of the defendant at a higher price than (hat paid to the plaintiff, then the defendant would pay to plaintiff such sum of money as would represent the difference. The declaration sets forth three purchases of stock in said company by or on behalf of the defendant at prices higher than $155 a share, viz. one from C. Z., another from D. D. F., and the third from W. G. After the cause was at issue by a denial of the alleged contract and purchases, the plaintiff served on the defendant certain interrogatories to be answered, several of which the defendant now moves to strike out for reasons stated in the notice of the motion. The statute under which these interrogatories were presented is section 155 of the practice act (Gen. St. p. 2592) as follows: "After an action at law heretofore or hereafter commenced is at issue, either party may serve upon the opposite party, whether such party be a natural person or a body corporate, written interrogatories upon any matter material to the issue, and the same shall be answered in writing under oath, and the answer served upon the party proposing the interrogatories in fifteen days after their service, and the answer shall be strictly responsive to the interrogatories proposed, and in the case of a body corporate, it shall be under the oath of such of the officers, agents or employes of the corporation as have personal knowledge of the facts or custody of the books, records or papers of the corporation, a discovery of which is sought, and the court may, by an attachment for contempt, a suppression of the defense, a stay of the proceedings, or otherwise, compel an answer thereto, and such answer shall be evidence in the action if offered as such by the party proposing the interrogatories, but not otherwise." In construing these provisions, section 157 of the practice act (Gen. St. p. 255'J) must also be borne in mind. It reads as follows: "The court, other than the court for the trial of small causes, before which a civil action or proceeding, whether of a legal or equitable nature, is pending, or a judge thereof, in term time or in vacation, may, in their discretion and upon five days' notice of the application, order either party to give to the other, within a specified time and under such terms as may be imposed, an inspection and copy, or permission to take a copy, of any books, papers or documents in his possession or under his control, containing evidence relating to the merits of the action or proceeding, or of the defense thereto, and if compliance with the order be refused, such books, papers or documents shall not be given in evidence in such action or proceeding, and the court may punish the party so refusing as for a contempt of the court." In Condict v. Wood, 25 N. J. Law, 310, this court declared the general purpose of section 157 to be substantially the same as that attained by a bill in...