State v. Rosecliff Realty Co. Inc.

Decision Date07 December 1948
Docket NumberNo. A-19.,A-19.
PartiesSTATE v. ROSECLIFF REALTY CO., Inc., et al.
CourtNew Jersey Superior Court

OPINION TEXT STARTS HERE

Syllabus by the Court

1. A demand for jury by one party to an action under R.S. 2:32-107, N.J.S.A., insures to the benefit of other parties to the cause.

2. Under the circumstances present, the denial of plaintiff's motion for a jury trial was an abuse of discretion.

3. R.S. 10:1-2, N.J.S.A., held to include swimming pools and not restricted by R.S. 10:1-5, N.J.S.A.

Appeal from Second Judicial District Court, Bergen County; Dom Marconi, Judge.

Suit by Harold O. Cox and Melba Valle, in the name of the State of New Jersey, against Rosecliff Realty Company, Inc., Irving Rosenthal, Jack Rosenthal and Anna S. Halpin for the penalty provided by civil rights statute, for refusal of defendants to permit plaintiff the use of the facilities of a public bath house and swimming pool because of plaintiffs' race and color. A voluntary nonsuit was taken in the Cox action. From an adverse judgment, the State of New Jersey appeals.

Judgment reversed and cause remanded.

Before McGEEHAN, DONGES and COLIE, JJ.

Meyer Pesin and Hiram Elfenbein, both of Jersey City, for appellant.

Albert S. Gross, of Hackensack, for appellee.

COLIE, Judge.

This is the plaintiff's appeal from a judgment for defendants entered in the District Court of the Second Judicial District of the County of Bergen.

Harold O. Cox and Melba Valle brought suit, in the name of the State, against the defendants under the Civil Rights statute, R.S. 10:1-1 et seq., N.J.S.A. A voluntary non-suit was taken in the Cox action and therefore we are not concerned therewith.

The amended state of demand set forth that the plaintiff, a Negress, on June 29, 1947 purchased an admission ticket to Palisades Amusement Park, that thereafter she caused to be bought a ticket to the swimming pool and bathhouse which she offered to the defendants requesting admission but that the defendants denied her the accommodations, advantages, facilities and privileges of the public bathhouse and swimming pool because of her race and color. She concluded with a demand for the maximum penalty provided for in the statute.

Plaintiff's first three points deal with the action of the trial judge in trying the cause without a jury. Specifically the asserted errors consisted in permitting the defendants to waive a jury trial in the particular circumstances of the case; in denying plaintiff's application for a jury trial and finally it is said that the court, under the circumstances hereinafter set forth, had no jurisdiction to try the action without a jury. The summons was served on July 22, 1947, returnable July 31, 1947. Two days after service the defendants filed a written demand for jury and paid the requisite fee to the clerk. On February 4, 1948, the date set for trial, the defendants applied to the court to waive the jury previously demanded and the court over plaintiff's objection granted the application. Plaintiff then moved the court for leave ‘to pay the necessary for which we deposit with the Court now and ask that the case proceed with a jury, and we tender the amount of money to the Court for the jury fee.’ The motion was denied.

The applicable statute, R.S. 2:32-107, N.J.S.A., reads:

'Unless a demand for a trial by jury is made and notice thereof filed with the clerk of the court within and no later than ten days from the return day of the summons, and unless the party making the demand pays, at the time of making the demand, the cost of the venire, the demand shall be deemed to be waived, except that the judge may, in his discretion, grant a venire at plaintiff's expense, to be taxed in the costs of the action, notwithstanding the failure to make demand as herein provided; provided, however, that this section shall not apply to cases in which a judgment has been entered prior to a demand for a trial by jury.'

Under the statute, if either party properly demands a jury, the demanding party's right thereto is absolute and the court is deprived of jurisdiction to try the case otherwise than by jury. Tambe v. Otto, Sup. 1934, 113 N.J.L. 71, 172 A. 544. Obviously the legislature had in mind the possibility that a situation might arise in which although the demand for jury was not made as provided, nevertheless the power should be given the judge, in his discretion, to grant a venire, hence the exception.

Where one party has demanded a jury trial in conformity with the statute and subsequently waives a trial by jury at a time when the adverse party may no longer, as a matter of right, demand a jury trial, a situation arises which is not covered by the statute nor is there any case law in this state. In other jurisdictions where a like situation has arisen under similar statutes, it has been held that a demand by one party to an action inures to the benefit of the other party. 50 C.J.S., Juries, s 99, page 805. In Stukey v. Stephens, 37 Ariz. 514, 295 P. 973, 974, the court, in dealing with a situation similar to the present case, said:

'It is apparent that defendants relied upon plaintiffs' written demand for a jury, filed in the case, and for that reason made no formal demand of their own.

'We are of the opinion they were justified in so doing. With the demand of plaintiffs filed as it was, a further demand on the part of defendants would have been useless, and the law does not require a futile act. When one party has made a demand for a jury, we are of the opinion the other party may rely on such demand, and is relieved of the necessity of making one for himself. And if, at a later date, the party making the original demand desires to waive it, the opposing party, no matter when the waiver occurs, has then the right to determine whether he will agree to a trial before the court, or insist upon a jury trial. Any other rule would be highly inequitable, and productive of fraud.'

In Karch v. Nassau Electric, Sup.1907, 123 App.Div. 34, 107 N.Y.S. 829, 830, the court said: ‘In this case the plaintiff had duly demanded the jury, and hence a trial by jury was then assured to both parties. The defendant had the right to rest upon the action of the plaintiff, and to assume that the trial would be by jury, and there was no reason why it should have then on its part taken a step like unto that already taken by the plaintiff to obtain a like condition for both parties. The plaintiff could not waive the demand against the protest of the defendant, because his...

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7 cases
  • Levitt & Sons, Inc. v. Division Against Discrimination in State Dept. of Ed.
    • United States
    • United States State Supreme Court (New Jersey)
    • February 9, 1960
    ...enumeration. The reason for this conclusion lies in the Legislature's use of the words 'shall include.' In State v. Rosecliff Realty Co., 1 N.J.Super. 94, 62 A.2d 488 (App.Div.1948) certification denied 1 N.J. 602 (1949), the court was considering an alleged violation of the civil rights st......
  • Pennsylvania Human Relations Commission v. Alto-Reste Park Cemetery Ass'n, ALTO-RESTE
    • United States
    • United States State Supreme Court of Pennsylvania
    • July 2, 1973
    ...The word 'any' means '* * * one out of many * * * and is given the full force of 'every' or 'all'.' State v. Rosecliff Realty Co., 1 N.J.Super. 94, 100, 62 A.2d 488, 490 (1948) (emphasis added). See also Pennsylvania Human Relations Commission v. Chester School District, 427 Pa. 157, 166--1......
  • Valle v. Stengel, 9698.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • August 10, 1949
    ...Court of New Jersey, Appellate Division, at No. A-19, September Term, 1948, in State v. Rosecliff Realty Co. The decision referred to, 62 A.2d 488, reversing a lower court, was a suit brought by two of the present plaintiffs, Cox and Valle, based apparently on the very incidents complained ......
  • Central R. Co. of New Jersey v. Director, Division of Tax Appeals of Dept. of Treasury, A--2
    • United States
    • United States State Supreme Court (New Jersey)
    • October 1, 1951
    ...exclude any part of a proved system, then inept language was used for that purpose. As was said in State of New Jersey v. Rosecliff Realty Co., 1 N.J.Super 94, 62 A.2d 488 (App.Div.1948) 'The verb 'include' has not been defined so as to give it such a restrictive meaning.' See also Baker v.......
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