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Tambe v. Otto

Decided: May 16, 1934.

ROSE TAMBE, BY HER NEXT FRIEND, ALEX TAMBE, AND ALEX TAMBE, INDIVIDUALLY, PLAINTIFFS APPELLEES,
v.
GUSTAVE OTTO, TRADING AS OTTO'S BAKERY, DEFENDANT-APPELLANT



On appeal by the defendant of judgments rendered in favor of plaintiffs, by the trial judge of the District Court of the city of Passaic, sitting without a jury. Reversed.

For the defendant, Collins & Corbin (Edward A. Markley, of counsel).

For the appellees, Feder & Rinzler.

Before Justices Parker, Lloyd and Perskie.

Perskie

The opinion of the court was delivered by

PERSKIE, J. The facts are as follows: Defendant was served with process in this case on November 17th, 1932, and thereafter the clerk of the District Court received a letter, dated November 29th, 1932, from defendant's attorneys enclosing a demand for a jury trial and a draft for $11.75 to cover the jury fees. The clerk, in accordance with his usual custom and practice in such matters, deposited this money

in a special trust fund in the Peoples Bank and Trust Company, in which fund he deposited only money received for jury fees. Later, on March 4th, 1933, the bank was closed, as were all banks, by order of the president of the United States, and this bank has never opened except as it is now operating on a restrictive basis under a statute of this state, known as the "Altman act." Pamph. L. 1933, p. 43. The result is that the trust fund is restricted and therefore not subject to withdrawal. Subsequently, plaintiff gave written notice to the attorneys for the defendant that he would apply to the judge of the District Court on September 6th, 1933, for an order directing the trial of the action without a jury, unless the defendant deposited a new jury fee on the ground that "the money deposited with the clerk for the drawing of said jury are withheld in the Peoples Bank and Trust Company, as said institution is operating under the Altman act and, therefore, makes it impossible for said clerk to summon a jury to dispose of this case." As a result of that notice, and the argument had thereon, the judge of the District Court made an order directing that the defendant deposit within fifteen days with the clerk of the District Court the sum of $11.75 for the purpose of summoning a venire, and further provided that in the event of defendant's failure to make such deposit within that time, that the clerk shall place the case for trial on the regular contested list so that it might be disposed of without a jury in its regular course.

The attorney for the plaintiff, before proceeding with the trial itself, was still willing to give the defendant the opportunity of having the case tried by a jury upon depositing a jury fee, with the understanding that if and when the bank opened or released the funds, that the defendant would be reimbursed the amount which he had deposited there through the clerk, or such portion thereof as the bank would distribute, but counsel for defendant rejected the offer.

Before the case proceeded to trial, counsel for defendant objected thereto on the ground that the defendant was entitled to a jury in accordance with the statute in such case

made and provided. Notwithstanding the objection so made (Hinchly v. Machine, 15 N.J.L. 476), the court proceeded to hear the case without a jury.

Defendant's counsel participated throughout the whole trial of the case, cross-examining the plaintiffs and the witnesses for the plaintiffs, objecting to the admission and rejection of evidence, examining the defendant and the witnesses ...


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