Hildreth v. City of Troy

• Decision Date: 19 January 1886
• Citation: 101 N.Y. 234,4 N.E. 559
• Parties: HILDRETH v. CITY OF TROY.
• Court: New York Court of Appeals Court of Appeals

101 N.Y. 234

4 N.E. 559

HILDRETH

v.CITY OF TROY.¹

Court of Appeals of New York.

Filed January 19, 1886.

W. J. Roche, for appellant.

James Lansing, for respondent.

ANDREWS, J.

This action was brought to recover for injuries sustained by the plaintiff from the negligence of the defendant in failing to keep Congress street, in the city of Troy, in safe condition for travel, and resulted in a verdict for the plaintiff for $1,800. It appears from the case that, upon the impaneling of the jury, the plaintiff ‘excused’ eight jurors drawn from the regular panel, and residents of the city of Troy, upon the ground that they were interested in the result of the action, to which proceeding the city attorney objected, on the ground that residents and tax-payers of the city are not disqualified as jurors in city cases, if otherwise competent. The court overruled the objection, and held that all such jurors were disqualified, to which ruling the attorney for the defendant excepted. Thereafter four additional jurors, residents of the city, were drawn, and the same proceeding was held, and they were excluded from the panel. The jury-box was filled from other names in the panel, and none of the jurors who sat were objected to or challenged. It is not claimed that the jurors excluded by the ruling of the court were interested except as tax-payers of the city. By the rule of the common law the inhabitants of a municipality, or the members of any body politic, were incompetent to sit as jurors in a case in which the corporation was a party. They were deemed to be interested, and such interest was a good cause of principal challenge. Co. Litt. 157 a, b. The common law has been modified in this state by general statutes, making the inhabitants of a town or county competent jurors in suits brought by or against such town or county, (1 Rev. St. 357, § 4; page 384, § 4; 2 Rev. St. 420, § 58;) and, as to the inhabitants of cities, by special provision, inserted in nearly all cases, in the charter of incorporation. But the charter of Troy, enacted in 1816, provides:

‘And be it further enacted that upon the trial of any issue, or upon the taking or making of any inquisition, or upon the judicial investigation of any facts whatever, to which issue, inquest, or investigation the mayor, recorder, aldermen, and commonalty of said city are a party, or in which they are interested, no person shall be deemed an incompetent juror by reason of his being an inhabitant, freeholder, or freeman of the said city.’ Chapter 1, § 16, Laws 1816.

This provision has never been repealed or amended, and was in force at the time of the trial of this action. The ruling of the learned trial judge, excluding from the jury the residents of Troy on the ground of interest, was in contravention of this explicit provision of law, and was plainly erroneous.

The question presented is whether the error of the judge is ground for the reversal of the judgment. The proceeding on the part of the plaintiff was in substance a challenge. It was so treated by the attorney for the city and by the court. The court ruled that residents of the city were legally disqualified as jurors, and excluded them on that ground alone. The right of a party to except to a determination of the court upon a challenge to a juror, and to have such determination reviewed on appeal, is expressly given by the Code. Section 1180. This section recognizes the determination of a challenge as involving a legal right, which may be reviewed, and, if erroneous, set aside. The general term disposed of the question on the ground that the rejection of a competent juror was not ground of error, where the jurors who actually try the case are competent. We cannot assent to this view. In our judgment, the adoption of this principle might seriously imperil the system of jury trial, and lead to practices which the statutes regulating the drawing of jurors were designed to prevent. The main purpose of the statutes for the drawing and selection of trial jurors is the securing of a fair and impartial jury. To this end provisions are made, which, if followed, prevent the selection of a jury, either by the court, or the officers of the court, or by either of the parties to the action, and exclude from the jurybox all jurors not indifferent, or who for any reason are disqualified to act as jurors; while at the same time they secure to the parties the advantage of a jury constituted by lot from all the qualified jurors, undrawn on the panel. By the statute of 3 Geo. II. § 11, ‘for the better regulation of juries,’ it is provided that the first 12 persons drawn, and appearing, and approved as indifferent, should be the jury to try the cause. This provision was incorporated into the Revised Laws of 1813, (1 Rev. Laws, 331, § 20,) and into the Revised Statutes, (2 Rev. St. 420, § 61,) and was re-enacted in the Code of Civil Procedure (section 1166) without any substantial change. The section of the Code is in this language:

‘The first twelve persons who appear as their names are drawn and called, and approved as indifferent between the parties, and not discharged or excused, must be sworn, and constitute the jury to try the case.’

Sections 1032 and 1033 enumerate causes for which jurors may be discharged or excused. The language of section 1166 is mandatory. The first 12 persons drawn, who appear, and are indifferent, and not discharged or excused, must, the section declares, be sworn and constitute the jury.

Blackstone refers with just admiration to the safeguards thrown around the selection of a jury by the English statutes, and observes that they are admirably designed for the avoiding of frauds and secret management, by electing the 12 jurors out of the whole of the panel by lot. 2 Bl. Com. 365.

It is said that no injury resulted to the...