deposit the ballots, containing the names of those who attended and served, in another box, kept by him. The ballots, containing the names of those who did not appear and serve, which have not been destroyed, as prescribed in article first of this title, must be returned to the box from which they were taken. From Id., § 36. § 1051. Jurors to be drawn from that box, when first box is exhausted. If, at the time of drawing trial jurors for a term, there is not a sufficient number of ballots remaining in the first box, the clerk, after drawing all the ballots therein, must draw the necessary number from the second box, containing the names of those jurors who have before served, as prescribed in the last section; and must continue to draw from that box, until new lists of jurors are transmitted by the town officers. From Id., § 39. §1052. A third jury box to be kept. The county clerk must keep, in addition to the two boxes specified in the last two sections, a third box, in which he must deposit duplicate ballots. containing the names, with the proper additions, of all persons, selected and returned as trial jurors, who reside in the city or town, where a trial term of a court of record is appointed to be held, pursuant to law. From ch. 210 of 1861, § 1 (4 Edm. 649). § 1053. When old ballots therein to be destroyed, and new ballots deposited. The ballots, kept in the third box, must be destroyed by the clerk, and new ballots must be deposited therein by him, at the same time, and under like circumstances, as prescribed in this article, with respect to the destruction of the old ballots, and the depositing of new ballots, in the first box. § 1054. Jurors, when to be drawn from third box. If a sufficient number of trial jurors, duly drawn and notified, do not attend or cannot be obtained, to form a jury, the court may, in its discretion, direct the sheriff to draw from the third box, in the presence of the court, the names of as many persons as the court deems sufficient for that purpose. From ch. 210 of 1861, part of § 2. § 1055. How such juror to be notified. The sheriff must forthwith notify each person so drawn, and make a return, as prescribed in title fifth of this chapter, where talesmen are required to attend: and the provisions of that title apply to each person so notified. From Id., § 3. See § 1171. § 1056. Justice of supreme court, or county judge, may order drawing of additional jurors. A justice of the supreme court, appointed to hold a trial term of the supreme court, may, by an order under his hand, direct that such a number of jurors, as he deems necessary. not exceeding twenty-four, be drawn for that term, in addition to the thirty-six jurors, to be drawn as prescribed in the foregoing sections of this article. A county judge may, in like manner, direct the drawing of a like additional number of jurors, for a term of the county court to be held in his county. From 2 R. S. 417, Part 3, ch. 7, tit. 4, § 41 (2 Edm. 434), and ch. 52 of 1874, (9 Edm. 856). Am'd by ch. 946 of 1895. § 1057. Proceedings upon such order. An order, made as prescribed in the last section, must be delivered to the clerk of the county, in which the term is to be held, at least twenty days before the day appointed for the commencement thereof; and the clerk must forthwith file it. This article applies to the additional jurors, so required to be drawn. From 2 R. S. 417, Part 3, ch. 7, tit. 4, § 42. § 1058. For what courts, and by whom, additional jurors may be ordered. At a trial term of the supreme court, or of the county court, an order may be made by the court, requiring the clerk of the county to draw, and the sheriff to notify, any number of trial jurors, specified in the order, which the court deems necessary, to attend that term, or a term thereafter to be held, either by original appointment, or by adjournment, at the commencement thereof, or on a particular day, specified in the order; provided, however, that in the county of Albany, unless otherwise directed by the justice designated to preside or hold the term, three panels of jurors of thirty-six each shall be drawn for each and every trial term of the supreme court appointed to be held in said county; the presiding justice of any trial term may also during the prog ress of such term order an additional panel of jurors to be drawn for service at such term or for any part or portion thereof. The thirty-six trial jurors first drawn for a term, or such other number as the judge appointed to hold or preside at the term directs, must be notified to be present during the first six days of the term, and the thirty-six trial jurors next drawn, or such other number as the judge directs, must be notified to be present during the next six days of the term and a like number during each succeeding six days. The judge holding or presiding at the term, may in his discretion, on the application of a trial juror excuse him from the whole, or a part of the time of service required of him. The judge may also change the time of service of a juror to a later day, during the same, or a subsequent term of the court. Each juror whose time of service is changed to a day certain must attend at the opening of court on that day, and thereafter until discharged, without further notice. If he fails so to do he is liable to the same punishment as if he has been personally notified by the sheriff to attend the term, and to be present on that day. The clerk of the court must enter in a book kept for that purpose the name of each juror who is so excused, or whose time of service is changed. From ch. 16 of 1871, § 1, amending ch. 409 of 1870 (7 Edm. 732). § 1059. How such additional jurors drawn and notified. The clerk must thereupon forthwith bring into court, all the boxes, wherein ballots, containing the names of trial jurors are deposited, as prescribed in this article; and must, in the presence of the court, publicly draw from such box or boxes as the court directs, the number of trial jurors specified in the order. The clerk must make and certify two lists of the persons so drawn; and must file one list in his office, and deliver the other to the sheriff. sheriff must thereupon immediately notify each person so drawn, to attend, as specified in the order. From Id. The § 1060. Power of county judge, as to attendance of jurors. The county judge may, at the time of drawing trial jurors to attend a term of the county court, make an order, designating a particular day, during the term when the jurors must attend, or two or more particular days, upon each of which a portion of the jurors must attend. The sheriff must thereupon notify them to attend, as specified in the order. From ch. 8 of 1861, § 1. Am'd by ch. 946 of 1895. § 1061. Powers of deputy county clerk, under this article. The deputy county clerk possesses, in the absence of the county clerk from his office, or from the sitting of a term of the court, the powers conferred by this article upon the county clerk. § 1062. This article not applicable to New York and Kings counties. This article does not apply to the city and county of New York, or to the county of Kings. ARTICLE THIRD. Mode of Striking and Procuring a Special Jury, and of Procuring a Foreign Jury. SEC. 1063. What courts may order a special jury to be struck. 1064. Party obtaining order to give eight days' notice. 1065. Mode of striking jury. 1066. Jurors so drawn to be notified to attend. 1067. Jury to be formed as in other cases. 1068. Provision where clerk or commissioner of jurors is interested. 1069. Party applying for special jury to pay expenses. 1070. Copy of order for foreign jury to be delivered to sheriff. 1071. Mode of obtaining a foreign jury. § 1063. What courts may order a special jury to be struck. Where it appears to the court, that a fair and impartial trial of an issue of fact, triable by a jury, joined in an action, pending in the supreme court. cannot be had without a struck jury, or that the importance or intricacy of the case requires such a jury, the court must make an order, upon notice, directing a special jury to be struck, for the trial of the issue. The order must specify the term, and it may specify a particular day in the term, when the jurors must attend. From 2 R. S. 418, Part 3, ch. 7, tit. 4, § 46 (2 Edm. 435); ch. 530 of 1857. Am'd by ch. 946 of 1895. § 1064. Party obtaining order to give eight days' notice. Unless the order specifics, or directs the officer, who is to strike the jury, to fix a time for the parties to attend, the party obtaining it must give at least eight days' notice of the time when he will attend, before the clerk of the county in which the action is triable, or, if it is triable in the city and county of New York, or the county of Kings, before the commissioner of jurors, for the purpose of having the jury struck. From Id., § 47 Am'd by ch. 946 of 1895. § 1065. Mode of striking jury. At the time appointed, the clerk, or, in his absence, the deputy-clerk, or the commissioner, as the case requires, must attend at his office, with the original lists or books, filed or kept in his office, as required by law, containing the names of the persons who are then liable to serve as trial jurors; and, in the presence of the parties, or their attorneys, or counsel, must strike a trial jury, as follows: 1. The clerk, deputy-clerk, or commissioner, must select from the lists or books. the names of forty-eight persons, whom he deems most indifferent between the parties, and best qualified to try the issue; and must make and certify a list of those names. 2. The party, on whose application the special jury was directed to be struck, or his attorney or counsel, may then first strike from the list one name; the adverse party or his attorney or counsel may then strike therefrom one name; and so alternately, until each party has stricken out twelve names. 3. If either party fails to attend, at the time and place of striking the jury, or neglects to strike out a name, the clerk, deputy-clerk, or commissioner, must strike for him. 4. The clerk, deputy-clerk, or commissioner, must thereupon make out a list of the names of the twenty-four persons not stricken out, and must certify that it is a correct list of the persons, drawn to serve as jurors, pursuant to the order of the court. He must immediately deliver the list so certified, and a certified copy of the order, to the sheriff of the county. If the list from any ward or town cannot be found, the clerk must make a new list from the ballots then in use for jurors 1or that ward or town, and must use that list upon striking the jury, in place of the original list. From Id., § 48, as amended by ch. 69 of 1876. Am'd by ch. 416 of 1877. § 1066. Jurors so drawn to be notified to attend. The sheriff must notify the persons whose names are contained in the list and must return the names of those notified, to the term, at which they are required to attend, as prescribed by law for notifying and returning ordinary trial jurors. From Id., § 49, and ch. 322 of 1858, § 36, as modified by ch. 166 of 1873, § 1. § 1067. Jury to be formed as in other cases. From the persons so notified and attending, a jury must be formed for the trial, and the issue must be tried as prescribed in this chapter with respect to an ordinary jury trial. The court has the same power to excuse or discharge a juror, and to cause additional jurors to be drawn, or talesmen to attend, as upon an ordinary jury trial. But the court may, in its discretion, set aside an additional juror so drawn, or a talesman, upon the objection of either party, without a formal challenge, but neither party shall have more than two peremptory challenges. From Id., § 50. Am'd by ch. 946 of 1895. § 1068. Provision where clerk or commissioner 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 Id., § 51. Am'd by ch. 460 of 1884. § 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 Id., § 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 New York, 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, ch. 7, tit. 4, § 10 (2 Edm. 427). § 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. |