Romano v. Borough of Metuchen
| Decision Date | 21 July 1938 |
| Docket Number | Nos. 16, 17.,s. 16, 17. |
| Citation | 120 N.J.L. 456,200 A. 797 |
| Parties | ROMANO et al. v. BOROUGH OF METUCHEN. |
| Court | New Jersey Supreme Court |
Syllabus by the Court.
Where matters of account are in controversy and an order of reference is made by the trial judge, and in such order at the time it was made and entered it was expressly provided that "the rights of the respective parties hereto to a trial by jury are hereby reserved to them", such order will be deemed to have been made under Section 155 of the Practice Act of 1903 (R.S.1937, 2:27— 178 et seq.; 3 C.S.1910, p. 4101), and hence it is the right of either party to the order to have a trial by jury, upon taking proper procedure to obtain it after the coming in of the report of the referee, even though such parties consented to the entry of the order of reference at the time it was made.
Action on a contract by Charles Romano and Michael Saggese, partners, trading as Romano & Saggese, against the Borough of Metuchen, a municipal corporation of the county of Middlesex, wherein defendant filed a counterclaim. The matter was referred to a referee and the trial judge entered an order denying a motion to confirm the report and settling the postea which, with the referee's report attached, was filed with the clerk of the Supreme Court. On motions for a jury trial after reference and report.
Remitted for trial by jury.
Argued January term, 1938, before BROGAN, C. J., and TRENCHARD and PARKER, JJ.
Thomas Brunetto, of Newark, for plaintiffs. Frederic M. P. Pearse, of Newark, for defendant.
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This matter, as will Be seen, resolves itself into a demand for trial by jury after reference and report by the referee.
The plaintiffs were contractors who agreed to construct a sewer for the Borough of Metuchen, the defendant herein. In a suit brought by the plaintiffs it was claimed that the contract was performed, which claim was denied by the defendant, which also counterclaimed for the cost of repairs alleged to have been necessary for the proper completion of the contract.
The defendant moved that the matters in issue be referred to a referee, pursuant to the statute, and the trial judge, to whom the case had been referred, after finding that matters of account were in controversy, granted such motion. The rule of reference provided that "the rights of the respective parties hereto to a trial by jury are hereby reserved to them." The attorney for the plaintiffs consented to the making of the order and endorsed his consent thereon.
After hearing, the referee filed his report finding in favor of the plaintiffs for a claim made by them for monies retained by the defendant on their contract, and against the plaintiffs for extras, and against the defendant on its counterclaim. Thereupon an order was entered by the trial judge denying a motion to confirm the report, settling and signing the postea which, with the referee's report attached, was filed in the office of the Clerk of the Supreme Court.
The defendant then filed exceptions to that part of the report which was adverse to it, and demanded a trial by jury, in substantial compliance with the procedure outlined in Borough of Eatontown v. Hendrickson, 107 N.J.L. 21, 150 A. 584; and the plaintiffs did practically the same thing, although their "reasons" ask for confirmation of the report as to matters wherein plaintiffs were successful, and a new trial respecting matters wherein they were unsuccessful.
We have, therefore, the question whether or not a jury trial should be awarded.
The plaintiffs now contend that the reference having been made with the consent of the parties, "neither party can file a dissent or exceptions or have a trial by jury" and urge that a trial by jury should be denied. They rely upon Rule 99 of this court which provides that "all rules of reference entered by consent of the parties * * * may state whether the award of the referee is to have the effect of a finding of arbitrators, or merely the force of a verdict, and in the absence of such statement the award shall be treated as a verdict." They contend that by the force of this rule there can be no jury trial. The defendant, on the other hand, contends that matters of account being in controversy, sections 155, 156 of the Practice Act of 1903, R.S.1937, 2:27—178 to 2:27—182; 3 C.S.1910, pp. 4101, 4102, are applicable, and that the order was made pursuant thereto, and that thereunder where, as here, each party, "at the time of ordering such reference enter in the minutes his reservation of a right to trial by jury", it was the right of both parties to "demand a trial by jury, in which case the action shall be tried by jury," provided of course exceptions to the report have been filed as required by the statute.
We believe that the defendant's contention is sound. We believe that the right of a trial by jury in the present case was properly preserved to the parties and that proper procedure was followed to obtain it after the coming in of the report of the referee.
Such we think is the result of a consideration of the case of Harrington's Sons Co. v. United States Express Co., 87 N.J.L. 154, 93 A. 697, which seems to involve a proceeding similar to the one at bar. There the plaintiff contended that the defendant was the moving party for the order of reference and that this being...
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