Decided: October 18, 1972.
HENRY JORDAN AND EMILY JORDAN, PLAINTIFFS-RESPONDENTS,
CITY OF NEWARK, DEFENDANT-APPELLANT
Fritz, Lynch and Demos.
[121 NJSuper Page 37]
In this personal injury, negligence, fall down action, defendant appeals from a jury verdict in favor of plaintiff. The wife's claim was abandoned. Defendant seeks a new trial, asserting along with other grounds, that it was improperly deprived of a trial with a jury of 12.
Both parties had made timely demand for a jury of 12 pursuant to R. 1:8-2(b), effective September 13, 1971.
The rule provides:
A demand for a jury in a civil action is deemed to be a demand for a jury of 6 unless such demand expressly requests a jury of 12.
At trial time plaintiff consented to proceed with a jury of six while defendant pressed the demand for a jury of 12. The trial court refused to accede to the demand and ordered the trial to proceed with a jury of six.
The N.J. Const. (1947), Art. I, par. 9, provides in part:
The right of trial by jury shall remain inviolate * * *
The constitutional guarantee of jury trial has been interpreted to mean a jury of 12. State v. James , 96 N.J.L. 132, 136 (E. & A. 1921).
Under the circumstances herein, defendant's right to a trial by a jury of 12 was improperly denied.
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Defendant did not waive its right to a jury of 12 by participating in the trial pursuant to the court's direction.
Reversed and remanded for a new trial.