Majority
p. 76PEOPLE v. McCLELLAN et al. (Supreme Court, Appellate Division, First Department. March 6, 1908.) Argued before PATTERSON, P. J., and INGRAHAM, McLAUGHLIN, CLARKE, and SCOTT, JJ.
Headnote
1. Juey—Special Jury—Case Triable by.A case involving the title to the mayoralty of New York City, and likely to turn upon questions of fact, is of such importance that it should be tried before a special jury.
2. Appeal—Disposition—Order Modified—Order for Special Jury.
Where, on appeal from an order granting a struck jury, the notice of motion asking therefor “or for such other and further relief as to the court may seem just,” it appears that the case should be tried by a specially selected jury, but that an impartial and satisfactory jury can be obtained more surely and speedily by resort to the special jury panel expressly provided for by Laws 1901, p. 1462, c. 602, as amended by Laws 1904, p. 1147, c. 458, than by an attempt to procure á struck jury, the Appellate Division will, without remanding the case, modify the order by directing a trial before a jury drawn from the special jury list.
Appeal from Special Term.
Action by the people of the. state of New York against George B. McClellan and another. From an order granting a struck jury, the People appeal. Modified.
See 108 N. Y. Supp. 765 .
Clarence J. Shearn, for appellant.
Eugene L. Richards, Jr., for respondents.
This is, as was well said by the court below, a case of the gravest importance. Not only does it involve the title to the principal administrative office of the city, but it is quite
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probable that its decision will turn upon questions of fact. For these reasons, it is proper that it should be tried before a jury specially selected. We consider, however, that an impartial and satisfactory jury can be more surely and speedily obtained by a resort to the special jury panel provided for by chapter 602, p. 1462, of the Laws of 1901, as amended by chapter 458, p. 1147, of the Laws of 1904, than by an attempt to procure a struck jury. Jerome v. New York Evening Journal Pub. Co. (Sup. Feb. 7, 1908) 108 N. Y. Supp. 801 . The notice of motion asked for an order for a struck jury, or “for such other and further relief as to the court may seem just.” It is unnecessary, therefore, to send the case back to the Special Term.
The order appealed from will therefore be modified, without costs, so as to direct that the trial be had before a jury to be drawn from the special jury list. The number of jurors, the time when the drawing shall take place, and the term of the court, and the particular day of the term when such special jury must attend will be fixed by the order to be entered hereon, which must be settled on notice.