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representation as to the identity, residence, or any other matter, relating to a juror, duly drawn, and placed on a panel to be notified; or who knowingly retains, conceals, suppresses, or wilfully destroys, a notice to attend, left at the residence or place of business of another, who has been drawn as * trial juror, is guilty of a misde

meanor.

Laws of 1858, ch. 322, § 9.

for physiing false

§ 1161. A physician, who knowingly gives a false certificate, Penalty or makes a false representation, for the purpose of enabling or assist- clan giving a person, to be discharged, excused, or exempted from service, certificate. as a trial juror in the county of Kings, is guilty of a misdemeanor.

New.

sioner to

and pay

$ 1162. The commissioner of jurors must make a yearly report Commisto the board of supervisors, of all proceedings had before him, or by report him, in the discharge of his duties; and he must pay over to the over county treasurer, at least once in each three months, all money in his hands, which he has received as commissioner.

Laws of 1858, ch. 322, § 40.

money.

TITLE V.

Trial by jury.

ARTICLE 1. Formation of the jury.

2. The verdict.

ARTICLE FIRST.

FORMATION OF THE JURY.

SEC. 1163 Clerk to prepare ballots of jurors for trial.

1164. Clerk to draw ballots.

1165. Mode of drawing ballots.

1166. Persons drawn, etc., to form the jury.

1167. Ballots drawn, when to be deposited in a second box.

1168. Id.; when to be returned to the first box.

1169. Ballots of absentees, etc., to be returned to first box.

1170. New jury may be drawn while first is empanelled.

1171. When talesmen to be procured, or jurors drawn from third box. 1172. When talesmen to be procured.

1173. If sheriff is a party, court may appoint a person to act for him.

* The word & " omitted.

Clerk to prepare

jurors for

trial.

SEC. 1174. Duty of sheriff and of talesmen.

1175. Jury competent, although containing only part or none of original panel.

1176. Two peremptory challenges in a civil action.

1177. No challenge allowed because officer drawing is a party, etc.
1178. No challenge allowed because officer notifying is a party, etc.

1179. Challenges in penal actions.

1180. Challenges how tried. Exceptions to and review of the determination of the court, in reference thereto.

§ 1163. At the opening of a term of a court of record at which ballots of issues of fact are to be tried by jury, the clerk must cause ballots, uniform, as nearly as may be, in appearance, to be prepared, by writing the name of each person, returned to the term as a trial juror, with his proper additions, on a separate piece of paper. He must roll up or fold each ballot, in the same manner, as nearly as may be, so as to resemble the others, and so that the name is not visible. The ballots must be deposited in a sufficient box, from which they must be drawn, as prescribed in this article.

Clerk to draw ballots.

Mode of drawing ballots.

Persons drawn, etc., to

form the jury.

Ballots drawn,

2 R. S. 438, § 59; 3 Wait's Pr. 95.

§ 1164. When an issue of fact, to be tried by a jury, is brought to trial, the clerk, under the direction of the court, must openly draw, out of the box, as many of the ballots, one after another, as are sufficient to form a jury.

2 R. S. 438, § 60; 3 Wait's Pr. 95.

§ 1165. Before the first ballot is drawn, the box must be closed and well shaken, so as thoroughly to mix the ballots; and the clerk must draw each ballot, without seeing the name written on any of them, through an aperture, made in the lid of the box, large enough only to admit his hand conveniently.

2 R. S. 439, § 66.

§ 1166. The first twelve persons who appear, as their names are drawn and called, and are approved as indifferent between the parties, and not discharged or excused, must be sworn; and constitute the jury to try the issue.

2 R. S. 438, § 61.

§ 1167. The ballots, containing the names of the jurors so sworn, must be then deposited in another box, and there kept, apart posited in from the other ballots, until that jury is discharged.

when to be de

a second

box.

2 R. S. 438, § 62.

to be re

the first

§ 1168. After that jury is discharged, the ballots containing Id.; when their names must be again rolled up or folded, as prescribed in sec- turned to tion 1163 of this act, and returned to the box, from which they were box. first taken; and the same course must be pursued, as often as an issue is brought to trial by a jury.

2 R. S. 438, § 63.

absen

to be re

turned to

§ 1169. The ballot, containing the name of a juror, who is Ballots of absent, when his name is drawn or called, or is set aside, or excused tees, etc., from serving on that trial, must be again rolled up or folded, in the same manner as before, and returned to the box, containing the undrawn ballots, as soon as the jury is sworn.

2 R. S. 439, § 67.

first box.

may be while first

elled.

§ 1170. If an issue is brought to trial by a jury, while a jury New jury is empanelled in another cause, at the same term, and not then dis- drawn charged, the court may order a jury, for the trial of that issue, to be is empandrawn, out of the box containing the ballots then undrawn; but, in any other case, the ballots, containing the names of all the trial jurors, returned at, and attending the term, must be placed together in the same box, before a jury is drawn therefrom.

2 R. S. 438, § 64.

talesmen

cured, or

drawn

third box.

§ 1171. If a sufficient number of jurors, duly drawn and noti- when fied, do not attend, or cannot be obtained, to form a trial jury, the to be procourt may, in any county except Westchester, direct the sheriff to jurors require the attendance of such a number of talesmen, from the from bystanders, or from the county at large, qualified to serve as trial jurors, as it deems sufficient for the purpose. In Westchester county, the court must, and in any other county, except New-York and Kings, it may, in its discretion, instead of directing the sheriff to require talesmen to attend, direct him to draw a sufficient number of ballots from the third box, kept by the county clerk, as prescribed in title third of this chapter, and to notify the persons thus drawn, to attend. If, for any reason, a sufficient number of jurors to try the issue is not obtained, from the persons notified, under an order made as prescribed in this section, the court may make another order, or successive orders, until a sufficient number is obtained; and in making each order, the court may exercise the same discretion, as in making the first order.

2 R. S. 437, § 54, amended; 3 Wait's Pr. 99, 100. See Ruloff's Case, 11 Abb. N. S. 245, 287. Talesmen can only be summoned for a single trial

and not for a circuit. Shields v. Niag-
ara County Savings Bank, 3 Hun, 477;
S. C., 5 N. Y. Sup. Ct. (T. & C.) 585.

When talesmen

cured.

§ 1172. In any county, except New-York, Kings, or Westchesto be pro- ter, the court may also direct the sheriff to require the attendance of such a number of qualified talesmen, for the trial of an issue of fact, as it deems sufficient, where, by reason of one or more juries being empanelled, or for any other reason, no ballot remains undrawn; or where, in consequence of jurors being set aside, a juror cannot be obtained, for the trial of that issue, from the list of those returned.

If sheriff is a party,

appoint a person

to act for

2 R. S. 438, part of § 65.

§ 1173. If, in a case specified in the last two sections, the sheriff court may is a party to the issue, the court must appoint a disinterested person, to act in place of the sheriff. For that purpose, the person so appointed possesses all the powers, and is subject to all the duties and liabilities of the sheriff, with respect to the matters specified in those sections.

him.

Duty of sheriff and of talesmen.

Jury competent,

contain

2 R. S. 438, part of § 65, amended.

§ 1174. The sheriff, or person appointed by the court, must notify the requisite number of persons to attend, and make return thereof, as prescribed in section 1048 of this act; except that each person must be required to attend forthwith. Each person so notified must attend forthwith, and, unless excused by the court or set aside, must serve as a juror upon the trial. For a neglect or refusal so to do, he may be fined, in the same manner as a trial juror, regularly drawn and notified, as prescribed in this chapter; and he is subject to the same exceptions and challenges, as any other trial juror.

2 R. S. 437, § 55.

§ 1175. [Amended, 1877.] It is not a valid objection to a jury, although procured as prescribed in the last four sections, that it contains none of the jurors originally returned to the term, or is only partially composed of such jurors.

ing only part or none of original panel.

Two peremptory

2 R. S. 438, part of § 65, extended.

§ 1176. Upon the trial of an issue of fact, joined in a civil challenges action, in a court of record, or not of record, each party may peremptorily challenge not more than two of the persons, drawn as jurors for the trial.

in a civil action.

No challenge allowed

Laws of 1847, ch. 134 (4 Edm. St. 648), § 1. See 3 Wait's Pr. 111.

§ 1177. It is not a good cause of challenge, to the panel or array of trial jurors, in an action in a court of record, that the offi

cer who drew them is a party to, or interested in the action, or coun- because sel or attorney for, or related to, a party.

2 R. S. 437, § 56; 3 Wait's Pr. 103.

officer drawing is a party, etc.

lenge

because

notifying

§ 1178. It is not a good cause of challenge to the panel or array No chalof trial jurors, in an action in a court of record, that they were allowed notified to attend by an officer, who is a party to, or interested in, officer the action, or related to a party; unless it is alleged in the challenge, is a party, and is established, that one or more of the jurors drawn were not notified, and that the omission was intentional.

[blocks in formation]

etc.

⚫ges in

actions.

§ 1179. In a penal action, in a court of record, or not of record, Challento recover a sum of money, it is not a good cause of challenge to a penal trial juror, or to an officer who notified the trial jurors, that the juror or the officer is liable to pay taxes, in a city, town, or county, which may be benefited by the recovery.

2 R. S. 437, § 58; 3 Wait's Pr. 104. And see 2 R. S. 571, § 2.

ges how

a tried. tions to view of

Excep

and re

the deter

of the

§ 1180. [Amended, 1877.] An objection to the qualifications Challenof a juror is available only upon a challenge. A challenge of juror, or a challenge to the panel or array of jurors, must be tried and determined by the court only. Either party may except to the determination, and it may be reviewed, upon a question of fact, or mination a question of law, or both, as where an issue of fact presented by court, in the pleadings is tried by the court; except that where one or more thereto. exceptions are taken, to the rulings of the court, made after the jury is empanelled, an exception to the determination of a challenge must be heard at the same time; and the case must contain the matters necessary to present it, upon the facts, or the law, or both.

Laws of 1873, ch. 427 (9 Edm. St. 609), § 1, amended. See 3 Wait's Pr. 108, et seq.

ARTICLE SECOND.

THE VERDICT.

SEC. 1181. Discharge of jury failing to agree.

1182. Plaintiff cannot submit to nonsuit after jury retires. 1183. In an action to recover money, jury to assess damages.

1184. How double, treble, or increased damages, found and awarded.

1185. When verdict to be taken, subject to the opinion of the court.

1186. General and special verdict defined.

1187. General or special verdict, when rendered; special finding with gen

eral verdict.

1188. Special finding controls general verdict. 1189. Entry of verdict; subsequent proceedings.

reference

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