TITLE V. Trial by jury. ARTICLE 1. Formation of the jury. 2. The verdict. ARTICLE FIRST. Formation of the Jury. SEC. 1163. Clerk to prepare ballots of jurors for trial. 1164. Clerk to draw ballots. 1165. Mode of drawing ballots. 1166. Persons drawn, etc., to form the jury. 1167. Ballots drawn, when to be deposited in a second box. 1169. Ballots of absentees, etc, to be returned to first box. 1171. When talesmen to be procured, or jurors drawn from third box. 1173. If sheriff is a party, court may appoint a person to act for him. 1 1175. Jury competent, although containing only part or none of original panel. 1176. Number of peremptory challenges. 1177. No challenge allowed because officer drawing is a party, etc. 1178. No challenge allowed because officer notifying is a party, etc. 1180. Challenges how tried. Exceptions to and review of the determina- § 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, ch. 7, tit. 4, § 59 (2 Edm. 438). § 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. Person drawn, etc., to form the jury. 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 Id., § 61. Am'd by ch. 234 of 1883. § 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 Id., § 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 eleven hundred and sixty-three 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 Id., § 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 scon 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 hallots, 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. 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 ten hundred and thirty-eight of this act; if there is not a sufficient number of ballots remaining therein, to draw the residue from the second box, specified in section ten hundred and fiftyone of this act. 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 number of ballots from the third box, specified in section ten hundred and fifty-two of this act. In either case, the sheriff must notify the persons thus drawn to attend forthwith, or upon a day fixed by the court. a sufficient number of jurors to try the issue is not obtained, from the If, for any reason persons notified, under an order made as prescribed in this section, the court may make another order, or successive orders, until a sufnicient number is obtained; and in making each order, the court may exercise the same discretion, as in making the first order. From Id., § 54 and ch. 212 of 1873. Am'd by ch. 542 of 1879. See §§ 1052-1055. § 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 part of Id., § 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. § 1174. 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. ten hundred and forty-eight of this act; 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. so to do he may be fined in the same manner as a trial juror, reguFor a neglect or refusal larly drawn and notified, as prescribed in this chapter; and he is subject to the same exceptions and challenges, as any other trial juror. From Id., § 55. § 1175. 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 ch. 416 of 1877. § 1176. Number of peremptory challenges. 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 challenge not more than three of the persons drawn as jurors for the trial. From ch. 134 of 1847, § 1. Am'd by ch. 169 of 1891 and ch. 434 of 1894. § 1177. No challenge allowed because officer drawing is a party, etc. It is not a good cause of challenge to the panel or array of trial jurors, in an action in a court of record, that the officer who drew them is a party to, or interested in the action, or counsel or attorney for, or related to, a party. From 2 R. S. Part 3, ch. 7, tit. 4, § 56 (2 Edm. 437). § 1178. No challenge allowed because officer notifying is a party, etc. It is not a good cause of challenge to the panel or array of trial jurors in an action in a court of record, that they were notified to attend by an officer who is a party to, or interested in, the action, or related to a party; unless it is alleged in the challenge, and is established, that one or more of the jurors drawn were not notified, and that the omission was intentional. From Id., § 57. § 1179. Challenges in penal actions. In an action, in a court of record, or not of record, wherein a city, town or county is a party, it is not a good cause of challenge to a trial juror, or to an officer who notified the trial jurors, that the juror or the officer is a resident of, or liable to pay taxes, in the city, town or county, which is a party to such action. § 1180. Challenges how tried. Exceptions to and review of the determination of the court, in reference thereto. An objection to the qualifications of a juror is available only upon a challenge. A challenge of a juror, or a challenge to the panel or array of jurors, must be tried and determined by the court only. Either party may except to the determination, and it may be reviewed, upon a question of fact, or a question of law, or both, as where an issue of fact presented by the pleadings is tried by the court; except that where one or more exceptions are taken to the rulings of the court, made after the jury is empanelled, an exception to the determination of a challenge must be heard at the same time; and the case must contain the matters necessary to present it, upon the facts, or the law, or both. The fact that a juror is in the employ of a party to the action; or, if a party to the action is a corporation, that he is an employe thereof or a shareholder or a stockholder therein, shall constitute a good ground for a challenge to the favor as to such juror. From ch. 427 of 1873, § 1 (9 Edm. 609). Am'd by ch. 416 of 1877, and ch. 243 of 1901. ARTICLE SECOND. The Verdict. SEC. 1181. Discharge of jury failing to agree. 1182. Plaintiff cannot submit to nonsuit after jury retires. 1183. In action to recover money, jury to assess damages. 1184. How double, treble, or increased damages, found and awarded. 1185. When verdict to be taken, subject to the opinion of the court. 1186. General and special verdict defined. 1187. General or special verdict when rendered; special finding with gen. eral verdict. 1188. Special finding controls general verdict. 1189. Entry of verdict; subsequent proceedings. § 1181. Discharge of jury failing to agree. Where a jury is empanelled to try an issue, to make an inquiry, or to assess damages, in an action in a court of record, or not of record, or in a special proceeding before an officer, it the jurors cannot agree, after being kept together, for such a time as is deemed reasonable, by the court before which, or the officer before whom they were empanelled, the court or officer may discharge them, and issue a precept for a new jury, or order another jury to be drawn, as the case requires; and the same proceedings must be had before the new jury, as if it was the jury first empanelled. From 2 R. S. 554, Part 3, ch. 8, tit. 17, § 26 (2 Edm. 575). See 3347, sub. 7. § 1182. Plaintiff cannot submit to nonsuit after jury retires. It is not necessary, in an action in a court of record, to call the plaintiff, when the jurors are about to deliver their verdict; and the plaintiff, in such an action, cannot submit to a nonsuit after the cause has been committed to the jury, to consider of the verdict. § 1183. In action to recover money, jury to assess damages. In an action to recover a sum of money only, if a verdict is found, either in favor of the plaintiff, or in favor of a defendant, who has set up a counter-claim for a sum of money, the jury must assess the amount of damages. The jury may also, under the direction of the court, assess the amount of the damages where the court directs judgment for the plaintiff, on the pleadings. From Co. Proc. § 263. § 1184. How double, treble or increased damages found and awarded. Where double, treble or other increased damages are given by statute, single damages only are to be found by the jury, except in a case where the statute prescribes a different rule. The sum so found must be increased by the court, and judgment rendered accordingly. § 1185. When verdict to be taken, subject to the opinion of the court. Where, upon the trial of an issue by a jury, the case presents only questions of law, the judge may direct the jury to render a verdict |