1068. Am'd, 1884.] Provision where clerk or commisstoner of jurors is interested.

If it appears to the court, to which an application for a special jury is made, that the clerk, or the commissioner of jurors, as the case may be, is interested in the action; or is related to either of the parties; or is not indifferent between them; the court must appoint two disinterested persons to strike the jury; and the court may, in its discretion, in any case appoint two such persons to strike such jury. The persons so appointed possess, for the purposes of the action, all the powers conferred by this article, upon the clerk, or the commissioner of jurors.

From 2 R. S. 418, § 51. Am'd by L. 1884, c. 460.

§ 1069. Party applying for special jury to pay expenses. The expense of striking a special jury must be paid by the party applying for it, and shall not be taxed in the costs of the action.

From 2 R. S. 418, § 52.

§ 1070. Copy of order for foreign jury to be delivered to sheriff.

Where an order for a trial by a foreign jury is made, a certified copy thereof must be delivered to the sheriff of the county, from which it is to be drawn: who must give notice thereof to the clerk of that county, and also, in the city and county of NewYork, or the county of Kings, to the commissioner of jurors, at least twenty days before the first day of the term, at which the foreign jury is required to attend.

From 2 R. S. 410 (Part 3, c. 7, tit. 4), § 10.

§ 1071. Mode of obtaining a foreign jury.

The clerk, or, in the county of Kings, the commissioner, to whom the notice is given, must draw the names of twenty-four persons, in the same manner, and in presence of the same officers, as prescribed by law, with respect to ordinary trial jurors; except that notice of the drawing need not be published. A certified list of the names drawn must be delivered to the sheriff, who must notify each person drawn, and make a return, as in an ordinary

case.

From Id., 11.

ARTICLE FOURTH.

Penalties for non-attendance.

§§ 1072-1078. [Omitted; see Table, p. iii.]

276

TITLE IV.

Trial jurors in New-York and Kings counties; mode of selecting them, and of procuring their attendance.

Article 1. Provisions relating to trial jurors in the city and county of NewYork.

2. Provisions relating to trial jurors in the county of Kings.

[N. B.-The whole of this Title has been transferred to the Judiciary Law of the "Consolidated Laws," with the exception of a few sections which have been transferred to the Penal Law.]

1079-1162. [Omitted; see Table, p. iii.]

277-315

Formation of the jury.

Sec. 1163. Clerk to prepare ballots of jurors for trial,

1164. Clerk to draw ballots.

1165. Mode of drawing ballots.

1160. Persons drawn, etc., to form the jury.

1167. Ballots drawn, when to be deposited in a second box.

1168. Id.; when to be returned to the first box.

1169. Ballots of absentees, etc., to be returned to first box.

1170. New jury may be drawn while first is empanelled.

1171. When talesmaen to be procured, or jurors drawn from third box. 1172. When talesmen to be procured.

1173. If sheriff is a party, court may appoint a person to act for him. 1174. Duty of sheriff and of talesmen.

1175. Jury competent, although containing only part or none of original panel.

1176. Peremptory challenges in a civil action.

1177. No challenge allowed because officer drawing is a party, etc. 1178. No challenge allowed because officer notifying is a party, etc. 1179. Challenges in penal actions.

1180. Challenges, how tried. Exceptions to and review of the determination of the court, in reference thereto.

{ 1163. Clerk to prepare ballots of jurors for trial. At the opening of a term of a court of record at which issues of fact are to be tried by jury, the clerk must cause ballots, uniform, as nearly as may be, in appearance, to be prepared, by writing the name of each person, returned to the term as a trial juror, with his proper additions, on a separate piece of paper. He must roll up or fold each ballot, in the same manner, as nearly as may be, so as to resemble the others, and so that the name is not visible. The ballots must be deposited in a sufficient box, from which they must be drawn, as prescribed in this article.

From 2 R. S. 420 (Part 3, c. 7, tit. 4), § 59.

$ 1164. Clerk to draw ballots.

When an issue of fact, to be tried by a jury, is brought to trial, the clerk, under the direction of the court, must openly draw, out of the box, as many of the ballots, one after another, as are sufficient to form a jury.

From Id., 60.

§ 1165. Mode of drawing ballots.

Before the first ballot is drawn, the box must be closed and well shaken, so as thoroughly to mix the ballots; and the clerk must draw each ballot, without seeing the name written on any of them, through an aperture, made in the lid of the box, large enough only to admit his hand conveniently.

From Id.. § 66.

§ 1166. [Am'd, 1883.] jury.

Persons drawn, etc., to form the

The first twelve persons who appear, as their names are drawn and called, and are approved as indifferent between the parties

and not discharged or excused, must be sworn, and constitute the jury to try the issue. Persons shall be disqualified from sitting as jurors if related by consanguinity or affinity to a party to the issue in the same cases in which judges are disqualified. The party related to the juror must raise the objection before the case is opened; but any other party to the issue may raise the objection within six months from the date of verdict. From 2 R. S. 420, § 61. Am'd by L. 1883, c. 234.

§ 1167. Ballots drawn, when to be deposited in a second box.

The ballots, containing the names of the jurors, so sworn, must be then deposited in another box, and there kept, apart from the other ballots, until that jury is discharged.

From 2 R. S. 420, § 62.

§ 1168. Id.; when to be returned to the first box. After that jury is discharged, the ballots containing their names must be again rolled up or folded, as prescribed in section 1163 of this act, and returned to the box from which they were first taken; and the same course must be pursued, as often as an issue is brought to trial by a jury.

From 2 R. S. 421, § 63.

§ 1169. Ballots of absentees, etc., to be returned to first box.

The ballot, containing the name of a juror, who is absent, when his name is drawn or called, or is set aside, or excused from serving on that trial, must be again rolled up or folded, in the same manner as before, and returned to the box, containing the undrawn ballots, as soon as the jury is sworn.

From Id., § 67.

§ 1170. New jury may be drawn while first is empanelled.

If an issue is brought to trial by a jury, while a jury is empanelled in another cause, at the same term, and not then discharged, the court may order a jury, for the trial of that issue, to be drawn, out of the box containing the ballots then undrawn; but, in any other case, the ballots, containing the names of all the trial jurors, returned at, and attending the term, must be placed together in the same box, before a jury is drawn therefrom.

From Id., § 64.

1171. [Am'd, 1879, 1909.] When talesmen to be procured, or jurors drawn from third box.

If a sufficient number of jurors, duly drawn and notified, do not attend, or cannot be obtained, to form a trial jury, the court may, in any county except Westchester, direct the sheriff to require the attendance of such a number of talesmen, from the bystanders, or from the county at large, qualified to serve as trial jurors, as it deems sufficient for the purpose. In Westchester county, the court must direct the sheriff to draw a sufficient number of ballots from the first box, specified in section 508 of the Judiciary Law; if there is not a sufficient number of ballots remaining therein. to draw the residue from the second box, specified in section 523 of the Judiciary Law. In any other county, except New-York and Kings, it may, in its discretion, instead of directing him to require talesmen to attend, direct him to draw a sufficient

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number of ballots from the third box, specified in section 524 of the Judiciary Law. In either case, the sheriff must notify the persons thus drawn to attend forthwith, or upon a day fixed by the court. If, for any reason, a sufficient number of jurors to try the issue is not obtained, from the persons notified, under an order made as prescribed in this section, the court may make another order, or successive orders, until a sufficient number is obtained; and in making each order, the court may exercise the same discretion, as in making the first order.

From 2 R. S. 419, § 54. Am'd by L. 1879, c. 542; L. 1909, c. 65 (in effect Feb. 17, 1909).

1172. When talesmen to be procured.

In any county, except New-York, Kings, or Westchester, the court may also direct the sheriff to require the attendance of such a number of qualified talesmen, for the trial of an issue of fact, as it deems sufficient, where, by reason of one or more juries being empanelled, or for any other reason. no ballot remains undrawn; or where, in consequence of jurors being set aside, a juror cannot be obtained, for the trial of that issue, from the list of those returned.

From R. S. 421, § 65.

§ 1173. If sheriff is a party, court may appoint a person to act for him.

If, in a case specified in the last two sections, the sheriff is a party to the issue, the court must appoint a disinterested person, to act in place of the sheriff. For that purpose, the person so appointed possesses all the powers, and is subject to all the duties and liabilities of the sheriff, with respect to the matters specified in those sections.

From Id., § 65.

1174. [Am'd, 1909.] Duty of sheriff and of talesmen.

The sheriff, or person appointed by the court, must notify the requisite number of persons to attend, and make return thereof, as prescribed in section 536 of the Judiciary Law; except that each person must be required to attend forthwith. Each person so notified must attend forthwith, and, unless excused by the court or set aside, must serve as a juror upon the trial. For a neglect or refusal so to do, he may be fined, in the same manner as a trial juror, regularly drawn and notified, as prescribed in the Judiciary Law, and he is subject to the same exceptions and challenges, as any other trial juror.

From Id., § 55. Am'd by L. 1909, c. 65 (in effect Feb. 17, 1909).

§ 1175. [Am'd, 1877.] Jury competent, although containIng only part or none of original panel,

It is not a valid objection to a jury, procured as prescribed in the last four sections, that it contains none of the jurors originally returned to the term, or is only partially composed of such jurors.

From Id., § 65. Am'd by L. 1877, c. 416.

§ 1176. [Am'd, 1891, 1894.] Peremptory challenges in a

civil action.

Upon the trial of an issue of fact, joined in a civil action in a court of record, each party may peremptorily challenge not more than six, and in a court not of record each party may peremptorily