Conford, Handler and Meanor. The opinion of the court was delivered by Handler, J.A.D.
This is a filiation case under N.J.S.A. 9:16-2 brought originally in the Edison Township Municipal Court but tried in the Cranbury Municipal Court on a change of venue. Following an adverse determination, plaintiff filed a notice of appeal to the County Court requesting a trial by jury. The denial of this request and the trial of the matter in the County Court without a jury require a reversal and remand.
The distinctions between custody and support proceedings under Chapter 16 of Title 9, N.J.S.A. 9:16-1 et seq., and bastardy actions under Chapter 17 of Title 9, N.J.S.A. 9:17-1 et seq., have been the subject of considerable judicial treatment. E.g., Leonard v. Werger, 21 N.J. 539 (1956); Borawick v. Barba, 7 N.J. 393 (1951); F. v. M., 96 N.J. Super. 335 (App. Div.), certif. den. 50 N.J. 300 (1967);
Most instructive for present purposes is Leonard v. Werger, supra. That case involved the question of whether a mother in a filiation proceeding under Chapter 16 was entitled to an appeal and a trial de novo before the County Court. The court analyzed the interrelationship between Chapter 16 and Chapter 17 proceedings. It noted that although Chapter 16 had no provision for such an appeal, it did by N.J.S.A. 9:16-4 provide that actions under that chapter shall be heard by the courts which entertain Chapter 17 actions. Id. 21 N.J. at 541-542. It held that by virtue of that statutory directive, since there was explicit authority under N.J.S.A. 9:17-20 for an appeal to the County Court, this evinced a legislative intent to permit appeals in Chapter 16 actions in accordance with Chapter 17 appeals procedures. Id. at 542.
N.J.S.A. 9:17-20 provides in critical part that in an appeal to the County Court, "[u]pon request of either party the appeal shall be tried before a jury." We are satisfied that the impetus of Leonard v. Werger, supra, entails the application of this provision of N.J.S.A. 9:17-20 to a situation involving a Chapter 16 appeal wherein either party has requested a jury trial. The reasoning of the court in Leonard v. Werger, supra, would be deflected illogically if the right to an appeal and a trial de novo in the County Court in a Chapter 16 case, found to be authorized by reference to N.J.S.A. 9:17-20, did not encompass the right to proceed before a jury upon the request of either party. It cannot be inferred that the Legislature in according either party the opportunity to have a de novo jury trial at the County Court level was appending only an incidental privilege to the right of appeal. The opportunity for a jury trial in bastardy proceedings under Chapter 17 was conceived by the Legislature to be an important attribute and a similar
intent is to be imputed with respect to the comparable appeal allowed in filiation proceedings under Chapter 16.
It is recognized that not every aspect of the procedure in a County Court appeal in a Chapter 17 action is to be applied wholesale to a Chapter 16 appeal. Some procedural provisions of Chapter 17 have no pertinency in Chapter 16 cases. E.g., State v. Arbus, supra; Jesson v. DeBernardo, supra. The right to proceed before a jury on an appeal before the County Court, however, is not inappropriate in a filiation proceeding under Chapter 16. Moreover, although in no way emphasized, there was in fact a trial de novo before a jury in the County Court in Leonard v. Werger, supra, as well as in F. v. M., supra, and State v. Arbus, supra.
We are also mindful of R. 4:74-6, urged by defendant as allowing a jury trial before the County Court only upon the demand of the defendant. It is doubtful that this rule dealing with appeals in bastardy proceedings was intended to apply to the different actions for custody and support under Chapter 16. Cf. Borawick v. Barba, 7 N.J. supra at 399; M. v. F., 95 N.J. Super. 165, 171 (Cty. Ct. 1967). We note but have no occasion to resolve the apparent conflict between N.J.S.A. 9:17-20 and R. 4:74-6. Consequently, in accordance with the essential reasoning of Leonard v. Werger, supra, we hold that in a Chapter 16 proceeding, upon the demand of either party, the trial de novo on an appeal to the County Court shall proceed before a jury. Accordingly, the judgment of the County Court below is reversed and the matter remanded for a trial by jury pursuant to plaintiff's demand therefor.
Since there must be a retrial, two other issues raised by plaintiff should be addressed and clarified. It has been argued that certain tape recordings of conversations of the parties offered by plaintiff were improperly excluded. The court's reasons for disallowing these tape recordings are not entirely clear. At any rate, the ...