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Vonella v. Northern Assurance Co.

Decided: May 5, 1960.

WILLIAM VONELLA, T/A WEST LONG BRANCH SPORTS SHOP, PLAINTIFF,
v.
NORTHERN ASSURANCE COMPANY, ET AL., DEFENDANTS. WEST LONG BRANCH LANES, INC., A NEW JERSEY CORPORATION, PLAINTIFF, V. AETNA CASUALTY & SURETY COMPANY, ET AL., DEFENDANTS. FRANK VONELLA, PLAINTIFF, V. THE AMERICAN INSURANCE COMPANY, ET AL., DEFENDANTS. WEST LONG BRANCH LANES, INC., A NEW JERSEY CORPORATION, PLAINTIFF, V. THE AMERICAN INSURANCE COMPANY, ET AL., DEFENDANTS



Mariano, J.s.c.

Mariano

The parties are in substantial agreement with the following statement of facts:

The four above-captioned cases involve suits by plaintiffs on four sets or groups of insurance policies aggregating in amount $285,100.

All of the plaintiffs seek to recover damages for the full amount of the policies by reason of a fire which occurred on February 17, 1959. The complaints were filed and served

between the latter part of December 1959 and January 15, 1960. The plaintiffs chose not to demand trial by jury, then or thereafter.

Between January 26 and 30, 1960, four answers were served, but no demands for trial by jury were made by the defendants. The answers contain a denial of damages and raise the issues of (a) fraud, (b) false swearing, (c) increased hazard, and (d) improper care after damage.

Within ten days after the last answer was filed, plaintiffs' attorney, pursuant to letter request dated February 3, 1960, obtained a voluntary extension of time within which to file a reply. The stipulation enlarging the time to reply and consented to by the attorneys involved was filed with the Clerk of the Superior Court on February 11, 1960, and reads as follows:

"It is hereby stipulated by and between the parties to this action, acting by their respective counsel, that the prescribed period of time within which the plaintiff * * * may reply or otherwise move with respect to the answer herein be extended from February 18, 1960 to March 9, 1960 , and consent hereby is given to the filing of this stipulation with the Clerk of the Court.

Dated: February 5, 1960." (Italics mine)

On February 23, 1960 plaintiffs' attorney advised defendants' attorneys that he had decided not to file replies, and on February 25, 1960 defendants served by mail demands for jury trial on all issues in each case. These demands were served before March 9, 1960, within the time granted to the plaintiffs to reply or to move against the answers. The case is now before this court on the motion of the plaintiffs to strike the defendants' demand for jury trial.

R.R. 4:39-1, as amended, reads as follows:

"Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such ...


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