Rogers v. Rogers

| N.Y. Sup. Ct. | Jul 15, 1835

By the Court,

Sutherland, J.

The challenge to the juror was well taken and should have been allowed by the justice. The opinion expressed by the juror was not founded upon a mere loose rumor of the facts, but upon information derived from the party himself, who of all other persons may be supposed the best acquainted with them. This brings the case precisely within the principle established in Ex parte Vermilyea, 6 Cowen, 555, and the previous cases there referred to, 564. In Blake v. Millspaugh, 1 Johns, R. 316, the juror had expressed an opinion that the act of the defendant for which he was sued Was unlawful, and he was held incompetent. In Durell v. Mosher, 8 Johns. R. 445, the juror, at the same time that he expressed his opinion, stated that he had no personal knowledge of the matter, but if the reports of the neighbors were correct, the defendant was wrong and the plaintiff was right. The juror was held to be competent; his opinion was founded upon mere rumor. In Van Alstine v. Huddlestone, stated in the case of Vermilyea, Ch. J. Spencer applied the same rule, and recognized the distinction taken in Dwell v. Mosher» In the case of Vermilyea, the opinion of the juror was formed and expressed from having heard a previous trial of the same ■case ; he was held incompetent. In The People v. Mather, 4 Wend. 229, the right of challenge was, I think, carried somewhat farther than in the case of Vermilyea; but the previous cases fully cover this. The juror should have been excluded.

The obstruction of the highway by the deposite of the ashes was not, 1 am inclined to think, such a nuisance, according to the evidence in the case, as the defendant had a right of his own mere motion to abate. 9 Wend. 571. But the court of common pleas should have reversed the judgment of the justice on the first ground, and for their error in not doing it, their judgment must be reversed.

Judgment reversed»