Jordan v. City of Newark , 121 N.J. Super. 36 ( 1972 )

Pee Curiam.

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 expressely 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.

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.