Majority
p. 407MARETZEK against CAULDWELL. New York Superior Court; Special Term, April, 1867.
Headnote
E"ew Trial.—Challenge oe Jurors.In an action for damages for a libel, respecting the plaintiff’s conduct in the management of theatrical representations, the fact that a juror declares himself opposed to theatrical representations, is not a ground of challenge for principal cause.
Such an opinion does not amount tó inconipetency, and is therefore only a ground of challenge to the favor.
p. 408moved for a new trial on the ground above stated, among others which he adduced.
Motion for a new trial.
This action was brought by Max Maretzek, the manager of an opera in the city of Hew York, against the defendants, "William Cauldwell and Horace P. Whitney, publishers, editors, and proprietors of The Sunday Mercury, a weekly paper published in the city, to recover damages for two articles printed therein in October, 1863. The first article was headed, “ The Disgrace of the Opera,” and it described the opera of the plaintiff as being frequented by vicious and immoral persons, and being such an exhibition as respectable women could not patronize. The second article, which was set forth as a second cause of action, was entitled, “ The Academy of Music under a. Cloud ■ —Sin in High Places,”- and this article made the same charges with more particularity.
The proceedings in this case upon' demurrer to the answer are reported in 19 Abb. Pr. O. 8., 35, where the facts at issue .are fully stated.
The cause was tried at a trial term of the court, at which, upon the impannelling of the jury, the plaintiffs challenged a juror named Meyer, on the ground of bias and incompetency,because of alleged fixed opinion, amounting in law to a conclusion upon the matters in issue in the case.' The expression of opinion upon which this objection was founded was the statement of the juror that he was opposed to theatrical representations.
The juror was excluded by the court, and, upon the trial subsequently had, the jury rendered a verdict of $1,000 against the defendants.
A. Oakey Hall, for the defendants,
S. P. H. Judah., for the plaintiff, opposed.
If the case on which this motion was heard be correct, there was a fatal error committed on the former trial. A juror (Meyer) after a challenge to him by the counsel for the defendants had been withdrawn, was challenged by the plaintiff’s counsel for principal cause, which challenge was tried by the court. The juror having stated that “ he was
p. 409
opposed to theatrical representations,” the plaintiff’s counsel claimed that he was incompetent, and requested the court to. exclude said juror, to which counsel for the defendants objected. The court excluded said juror, and another was impanneled in his stead, to which decision and course the counsel for the defendant excepted.
Such an opinion entertained by the juror did not show either such relations to the parties, or such bias and incompetency, oh. account of fixed opinion, as amounted, in law, to a conclusion upon the matters in issue in this case, and was therefore only a ground of challenge to the favor.
There must, therefore, be a new trial on the case, with costs to abide the event.
Ordered accordingly.