| New York County Courts | Jan 15, 1901
This is an appeal from a .judgment of a justice of the peace rendered upon a verdict of a jury in a special proceeding, viz. in summary proceeding for the recovery of the possession of real estate instituted by the petitioner, who is the respondent on this-appeal, under chapter 17 of title 2 of "the Code of Civil Procedure.' All the allegations in the petition are admitted by the answer, excepting that the rent claimed is or was due at the time of the instituting of the proceedings. -At the time of the joining of the issue the defendant (tenant) demanded a jury, and thereupon the justice nominated 12 persons to serve as jurors, and issued his precept to the proper -officer, commanding him to summon the persons so nominated to appear before him at a time to which the case was adjourned, for the trial of the matters in dispute, as provided by section 2247 of the Code of Civil Procedure. On the return day the persons so nominated appeared, and upon the case being called for trial the justice proceeded to impanel a jury. One of -the six ipersons .so summoned, on being drawn, was peremptorily challenged by the petitioner (respondent), whereupon 'the defendants counsel objected to the allowance of such challenge, because no ground was assigned, and because the law did not allow a peremptory challenge in a proceeding of this nature, and requested the justice to allow the -juror so challenged to sit as one of the jurors in the case. The justice overruled: the objections and set aside the juror, and drew another in his place, to which the defendant objected. This action on the part of the-justice in overruling these objections is claimed as error which requires a reversal of the judgment. Attention is called to the case of People v. Hamilton, 39 N. Y. 109, by the learned counsel for the appellant, and .upon which he relies as an authority for reversal of the judgment. This case was decided in 1868, and, if there has been no change in the statute which governs and regulates the obtaining and formation of juries upon the trial «of a case of this nature, it is decisive here, and the judgment cannot stand. The method of obtaining jurors for the trial of issues of fact is now found in and regulated by chapter 10 of the Code of Civil Procedure; and the formation, etc., of the jury is specifically defined by .title 5 of this-chapter. By section 1176 of this title it is provided that:
“Upon the-trial of an issue of fact joined in a civil action in a court-of record, (each party may peremptorily challenge no.t more ‘than six, and in a court not of record each .party may peremptorily challenge not -more -than three Of the persons drawn as jurors 'for the trial.”
If. article 1 of title 5 of the chapter referred to., which includes this section, is applicable to special proceedings, then "it rseems to-, me that the right to peremptory challenge is given to a party in a case like this, and the decision cited is no longer authority on the point.
By subdivision 7 of section 3347 of the Code it is provided that:
“Titles third and fourth and article first of title fifth of that chapter [chapter 10] apply only to jurors drawn for, and juries formed at, a term of a court*847 commencing not less than twenty days after the first day of May, 1877. Subject to that qualification they apply to jurors selected under statutes, remaining unrepealed after that day, * * * as prescribed in those titles. The same portions of chapter ten, including article 8 of title third, apply equally to a criminal and a civil action or a special proceeding, and to a court of criminal and a court of civil jurisdiction.”
Here, then, as it seems to me, is found an express provision ma.king article 1 of title 5 (which includes section 1176, above quoted) applicable to a special proceeding like the one under consideration.
Section 2247 provides that “six of .the persons so summoned shall be drawn in like manner as jurors in justice’s court,” which is substantially the same provision found in the former statute, in existence when the case above cited was decided.
In this case (39 N.Y. 107" court="NY" date_filed="1868-03-05" href="https://app.midpage.ai/document/people-ex-rel-livermore-v-hamilton-3621602?utm_source=webapp" opinion_id="3621602">39 N. Y. 107, supra) Mason, J., says at page 110:
“While the right of peremptory challenge is an act of the party alone, which sets aside the juror drawn, without a decision or interposition of the justice at all, this act requiring the jury to be drawn in the same manner as jurors in justice’s court has reference to the mode and manner of drawing, and ought not to be held as extending by implication and construction the right of peremptory challenge given by the statute of 1874, which, in its very nature, limits the right of peremptory challenge to the trial of fact joined in civil actions.”
If the provisions of the statutes then in existence had been extended to and made applicable to trials in cases of special proceedings, as is the case under the present statutes, the decision of the court must have been otherwise; and the case, therefore, ceases to be an authority under the present existing statutes. I think, therefore, that the overruling of the objections by the justice was correct, and no error was committed thereby.
The second ground urged for reversal of the judgment is that the justice communicated with the jury after they had retired and were deliberating upon their verdict. In order to make a proper determination of this point, it is necessary to examine the return and see what occurred. The amended return made by stipulation sets forth the following:
“After they [the jury] had been placed In charge of a constable to deliberate upon their verdict, and after they remained in the same room where the trial was had for deliberation, and the parties and their attorneys and all others left the room, about twenty minutes thereafter the constable called to me [the justice], saying the jury wanted to talk with me. I then went into the room where the jury were. Defendant and his attorney and the attorney for the plaintiff and many others went into the same room. Albert T. Peck, one of the jurors, then said: ‘We don’t want all of you people. We want to see the justice.’ Thereupon the defendant and his attorney, the attorney for the plaintiff, and all others except the justice, left the court room. The jury then asked me, ‘If defendant pays the rent, can he stay on the place?’ and I said, ‘Yes.’ ”
Was there such an error here committed as requires a reversal of the judgment? If misconduct on the part of the justice took place, then the judgment should not stand. If he had communication with the jurors without the knowledge or consent of the parties to the action, then an error was committed which calls for a reversal. I think it must be held, under the facts disclosed by the return as above set forth, that the justice entered the room (which had been
“The case, then, stands precisely as if the jury had come into the court and asked for further instructions, and the justice had sent for the parties and their counsel for the purpose of being present and hearing the additional charge which he was about to deliver, and one of the parties had refused to •come into court, and the justice proceeded without him. There is no irregularity in the proceeding, or abuse of discretion on the part of the justice.”
Here the defendant and his counsel by remaining in the room might have heard the instructions asked for by the jurors and given by the justice, and it cannot be said to be the fault of the justice that they did not remain to hear it. It is a well-settled rule of law that a justice cannot enter the jury room and deliberate with the jury privately and apart from the parties and without their consent. But that rule of law should not, in my opinion, be applied under the facts of this case, as there is no semblance of abuse, and the consent of the parties to the action of the justice may be inferred. The instructions given were substantially correct, as the payment of the rent at any time before the issue of a warrant to dispossess the defendant would defeat the proceedings.
I think, therefore, no error was committed here, and the judgment should be affirmed, with costs; and an order is directed to be made accordingly.