11 N.Y.S. 44 | The Superior Court of the City of New York and Buffalo | 1890
One of the jurors was examined touching his qualifications as a juror, and testified, in substance, as follows: That he knew Division street, in the city of Hew York, the street on which the property was situated; that he had formed an opinion as to the effect of the elevated railroad upon property in narrow streets through which the railroad passes, (this opinion was against the road;) that he thought it damaged property in narrow streets; that it would require evidence to remove from his mind that opinion; that he came to the trial of this case with the opinion in his mind that the property owner had a just claim against the railroad, and that it would require evidence on the part of the railroad to remove that opinion; that this opinion was founded upon information that he had received from friends of his who lived on these narrow streets, and from the fact that houses have rented for very much
Coke says that the principal challenges to the poll may be reduced to four heads. (1) For respect of honor. (2) For want of default. (3) For affection or partiality. (4) For crime or delict. That the causes of favor are infinite, and that the rule of law' is that the juror must stand indifferent, as be stands unsworn. Co. Litt. 1566, 157b. In the case of McKinney v. Railroad Co., 6 N. Y. Supp. 168, to which our attention was called by the counsel for the respondent, the court said that the challenge to the juror w'as properly overruled. The juror stated that notwithstanding his sympathies, he could render an impartial verdict upon the evidence. It will be noticed that in this case the juror had but sympathy for the plaintiff. And the court also said (and to this the counsel did not call our attention) that the juror stood ■on the extreme limit of competency. Now, if this juror who had only sympathy stood on the extreme limit of competency, it seems to us that a juror who had made up his mind against the defendant, and whose opinion against the defendant was so strong that it would require evidence to remove it, is not on the limit of competency, but is beyond it, and is not competent. The juror did not stand indifferent to the parties. We are of the opinion that the judgment and order should be reversed, and a new trial ordered, with costs to the appellant to abide the event.
It was said by Judge Beardsley in Freeman v. People, 4 Denio, 35, that if triers “find that bias actually exists in the mind of the juror, although it is proved only by the formation of a hypothetical opinion, they may and ought to reject him. Some minds are so constituted that such an opinion would exert a controlling influence in the jury-box, while with others its influence would be neither seen nor felt. * * * The triers must find that the juror stands impartial and indifferent, or they should reject him.” See, also, Blake v. Millspaugh, 1 Johns. 316; Pringle v. Huse, 1 Cow. 433, and note at page 436; Coleman v. Hagerman, cited and commented on in Ex parte Vermilyea, 6 Cow. 564, and in People v. Mather, 4 Wend. 243.