68 N.Y.S. 842 | New York County Courts | 1901
The learned counsel for the appellant urges that the judgment be reversed by reason of the failure of the justice to administer the oath to the jurors who were impaneled to try the case, as
The only question of importance raised requiring particular attention is whether or not the judgment must be reversed because it is not set forth in the return that the jurors were sworn. It is quite probable that the usual oath was administered, but it will be assumed, however, in disposing of the case, that such was not the fact. In support of the appellant’s position the cases of Fulton v. Yuill, reported in 87 N. Y. Supp. 707, 24 Misc. Rep. 285, and Coughnet v. Eastenbrook, 11 Johns. 532, are cited and relied upon as decisive of this appeal.
If there can be no waiver of the administration of the oath required to be administered by the justice as required by section 2998, then it follows that the case first cited correctly declares the law upon the question here involved. It seems to me, however, that the failure on the part of the magistrate to swear the jury impaneled to try the case must be held to be, at most, an irregularity, and the failure of the parties to the action to make objections in the court below is a waiver of their right to do so thereafter. No express provision is found in the statute which declares the result of such a trial void, and, as parties to an action may waive constitutional rights provided to them, I see no good reason why the administering of the oath to the jurors cannot be waived, either expressly or impliedly, by failing to make objections to the proceedings at the trial and before its termination. By section 3006 of the Code it is provided that after the hearing of the proofs, etc., the jury must be kept together “under the charge of a constable until they agree upon their verdict; and for that purpose the justice shall administer to the constable the following oath: * * And there is no doubt but that the taking of this oath on the part of the constable may be waived. In the case of Coughnet v. Eastenbrook, 11 Johns. 532, cited supra, it is held that if it appear from the return that the jury retired, and nothing is said about the constable’s being sworn to attend them, it is a fatal omission, and the judgment will be reversed; and yet in the case of Tower v. Hewitt, in the same report, at page 135, it is held by the .same tribunal that the oath to the constable may be waived if the parties agree to it. In Goodrich v. Sullivan, 1 Thornp. & C., Parker, J., at
Another ground urged for the reversal of the judgment is that the verdict of the jury, which was as follows, namely: “We find a verdict for the defendant for $2.50, and delivery of the garment to the
The judgment must be affirmed, with costs, and an order is directed to be made accordingly.