On motions for a jury trial after reference and report.
For the plaintiffs, Thomas Brunetto.
For the defendant, Frederic M. P. Pearse.
Before Brogan, Chief Justice, and Justices Trenchard and Parker.
The opinion of the court was delivered by
TRENCHARD, J. 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 counter-claimed 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 moneys retained by the defendant on their contract, and against the plaintiffs for extras, and against the defendant on its counter-claim. 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 Eatontown v. Hendrickson, 107 N.J.L. 21; and the plaintiffs did practically the same thing, although their "reasons" ask for confirmation of the report as to matters wherein ...