Utilities Eng'g Inst. v. Bodenstein

• Decision Date: 10 December 1942
• Docket Number: No. 423/437.,423/437.
• Citation: 29 A.2d 197,129 N.J.L. 249
• Parties: UTILITIES ENGINEERING INSTITUTE v. BODENSTEIN et al.
• Court: New Jersey Supreme Court

29 A.2d 197

129 N.J.L. 249

UTILITIES ENGINEERING INSTITUTE

v. BODENSTEIN et al.

No. 423/437.

Supreme Court of New Jersey.

Dec. 10, 1942.

Syllabus by the Court.

In district courts trials must be before a judge sitting without a jury, unless a demand for a jury has been made within the time and in the manner provided by law.

Appeal from First District Court, Essex County.

Action by Utilities Engineering Institute against Roy Bodenstein and another for breach of contract. Judgment for defendants, and plaintiff appeals, and defendants move to dismiss the appeal.

Motion denied. Judgment reversed.

Jerome Alper & Alper and Samuel B. Friedman, all of Newark, for plaintiff-appellant.

Isaac W. Seiler, of Bayonne, for defendants-respondents.

October term, 1942, before BODINE, HEHER and PERSKIE, JJ.

BODINE, Justice.

The facts in this case, as stated by the learned District Court Judge, were as follows: "The action was brought by the plaintiff against the defendant to recover damages for a breach of contract. The summons was returnable January 27, 1942 and, on the return day, the case was listed for a date for the trial to be set. On March 3, 1942, upon consent, an order for depositions was filed and subsequently on March 6, 1942, the case was marked 'Not Moved,' pending the taking of depositions. On March 30, 1942, the defendant filed a demand for trial by jury. The plaintiff then made a motion to dismiss the demand filed by the defendant for trial by jury, on the ground that same was out of time, and that the said demand was not filed in accordance with the laws and statutes of the State of New Jersey in such case made and provided. The plaintiff's motion to dismiss the demand for jury trial was denied by the Court, and an exception to such ruling was duly noted. The case was tried before a jury on May 20, 1942, and a judgment was returned by the jury in favor of the defendant. On June 1, 1942, the defendant served the plaintiff with a motion to fix the amount of the defendants' costs and of the defendants' counsel fee and for the award and entry of a judgment therefor, in favor of the defendant and against the plaintiff. This motion was argued on June 10, 1942, at which time the defendant made application for costs of the jury fee, the costs of the stenographer's fee and for counsel fee. The decision was reserved on this motion, and, on June 11, 1942, a registered notice was sent by the Clerk of the Court, received on June 12, 1942, granting the defendants' motion and awarding the defendant costs of the jury fee, plus $5 attorney's fees. On June 18, 1942, notice of appeal was filed by the plaintiff."

The sole question propounded by the appellant is whether there was error in permitting the case to be tried before a jury.

R.S. 2:32-107 was amended by Ch. 174, P.L.1939, p. 525, N.J.S.A. 2:32-107, which provides as follows: "Unless a demand for a trial by jury is made and notice thereof filed with the clerk of the court at least 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 costs 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." This section seems to confer no discretion as to the untimely demand by a defendant.

Obviously, the defendant was not entitled as of right to a trial...