The defendants in a summary landlord and tenant dispossess action have made demand for trial by jury:
The summary proceedings were instituted under the provisions of N.J.S.A. 2A:18-53, which reads in part, insofar as it is pertinent to the present proceeding:
B. SUMMARY ACTIONS FOR RECOVERY OF PREMISES
Removal of tenant in certain cases; jurisdiction
Any * * * tenant * * * may be removed from such premises by the county district court * * * in an action in the following cases:
a. Where such person holds over * * *
b. * * * after a default in the payment of rent * * *
A default in rent is alleged and admittedly has occurred. The court, under authority of Marini v. Ireland , 56 N.J. 130, ordered the back rent payments made into court and consolidated the matters for hearing to convenience all parties.
Defendants, although admitting the statute is headed a "summary action" and being unable to explain to the court the admitted inconsistency of the words "summary action" with trial by jury, base their demand for a trial by jury on:
(A) Art. I, par. 9, of the New Jersey State Constitution (1947), which reads:
The right of trial by jury shall remain inviolate; but the Legislature may authorize the trial of civil causes by a jury of six persons when the matter in dispute does not exceed fifty dollars. The Legislature may provide that in any civil cause a verdict may be rendered by not less than five-sixths of the jury. The Legislature may authorize the trial of the issue of mental incompetency without a jury.
(B) N.J.S.A. 2A:18-16, which reads:
Right to jury trial; demand
Either party to any action commenced in a county district court may demand a trial by jury.
(C) R. 6:5-3(a), which reads, insofar as it relates to this case:
In summary actions between landlord and tenant and actions in small claims division (except actions for property damage resulting from negligence in a motor vehicle accident), the demand shall be filed and served and the fee paid by the demanding party at least one day before the return day of the summons.
The demand for a jury trial is denied, and because of a complete lack of any one full comprehensive decision in this State on the question, the court sets forth its reasons for this ruling in full.
The statute, N.J.S.A. 2A:18-53, under which the landlord instituted this summary proceeding was first enacted into law, in derogation of the existing common law, by the New Jersey Legislature in 1847. It has been described as follows:
A summary dispossession action is a special action created by statute, for the purpose of enabling a landlord to recover from his tenant the possession of real estate leased to the latter, speedily and easily. This action was intended to overcome the obstacles incident to ejectment, whereby the tenant could resort to technical delays and withhold the possession of the premises for an indefinite period."
[LeVine, Landlord and Tenant Law, § 3231 at 486]
Prior to the Constitution of 1844 and until the act of March 4, 1847, if the tenant held over, the landlord was compelled to bring an action for ejectment and both parties enjoyed a right to a trial by jury. (This is a right of action that is presently available to the parties remaining after a judgment in the present summary proceedings.)
The original act of March 4, 1847 provided for a trial by a jury of six. An amendment, in ...