3 N.Y.S. 478 | N.Y. Sup. Ct. | 1888
Section 2330 of the Code of Civil Procedure provides for a precept to the sheriff, requiring him to notify not less than 12 nor more than 24 indifferent persons qualified to serve, and not exempt from serving, as trial jurors in the same court, to appear before the commissioner at a specified time and place within the county, to make inquiry as commanded by the commissioner. The sheriff must notify the jurors accordingly, and must return the precept, and the names of the persons notified, to the commissioner, at the time and place specified in the precept. The commissioners, or a majority of them, must determine a challenge made to a juror. In Tebout's Case, 9 Abb. Pr. 211, it was held that if a finding in such a proceeding as the one before us was induced “by any bias or opinion previously formed,” there should be a new trial. In Re Wager, 6 Paige, 11, the chancellor declared that it was the duty of the sheriff “to select and summon such jurors as he thought proper, and who were indifferent in relation to the matter; that the commissioners were only authorized to decide upon the validity of challenges to jurors so selected.” Following that ruling, it is said, in Barbour’s Chancery Practice, (Ed. 1843, vol. 2, p. 232:) “The commissioners are authorized to decide upon the validity of challenges to jurors.” The same rule is repeated in the edition of 1875, (volume 2, p. 233.) Section 1176 of the Code of Civil Procedure provides that “ upon the trial of an issue of fact, joined in a civil 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.” It is claimed, however, by the respondent, that the technical language of that section does not apply to the proceedings before us. However that may be, we are of the opinion that a contesting party, upon a hearing before a commissioner, should be allowed to challenge jurors in accordance with the practice prescribed for the guidance and government of courts in obtaining an impartial jury. We think the learned commissioner committed an error when he refused to hold that the juror was not “an indifferent person,” and in determining the challenges adversely to the appellant.
In a proceeding so important as the character of the one in which the ques
In Holcomb v. Holcomb, 95 N. Y. 316, the rule is laid down in respect to non-expert witnesses, and the extent given to which their examination may be made, and their opinion delivered; anditis said that where they have “testified to facts within their knowledge and observation,” they may characterize them as rational or irrational; that the testimony from such witnesses must .be limited to their conclusions from the facts testified to by them. The witness Douglas was allowed to testify, against an objection, that the impression formed upon his mind was that Kloek was failing very fast, physically as well as mentally. When the direct question was put to him as to the impression that was made upon his mind by the talk which he had detailed as to being rational or irrational, the witness was unable to answer in accordance with the rule stated in Holcomb v. Holcomb, supra, but the commissioner allowed the evidence to stand, in which the witness said: “It seemed to me that his mind was very weak, but I could not call it rational or irrational.” We think the order of confirmation should be set aside, together with the finding of the jury, and that a trial should be had in the county court of 'Oneida, county, of the questions of fact arising upon the competency of Simeon Kloek. Findings of the jury set aside, and the order of confirmation reversed, and a new trial of questions of fact ordered before a commission, and a jury to be appointed by the county court of Oneida county, with the costs of this appeal to abide the final award in the proceeding. All concur.