On appeal from District Court.
McGeehan, Donges and Colie. The opinion of the court was delivered by Colie, J.A.D.
This 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. 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 fee 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 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 , 113 N.J. Law 71. (Sup. Ct. 1934). 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. p. 805, Juries, sec. 99. In Stukey v. Stephens , 295 Pac. 973 (Arizona) the court, in dealing with a situation similar to the present case, said: "It is apparent that defendants relied upon plaintiff's 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 ...