In re Proving the Paper Propounded as the Last Will of Rockwell

Majority

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In the Matter of proving the paper propounded as the last Will etc., of Elizabeth A. S. R. Rockwell, Deceased.

(Supreme Court, General Term, Fifth Department,

Filed April 11, 1890.)

Headnote

Appeal—From part cot order—Jury.

A motion for a struck jury was denied, provided the proponent of the will should stipulate that the jurors called in the regular panels might sit notwithstanding they had read newspaper accounts of the controversy and formed opinions thereon, or conversed with others on the merits thereof, or if such stipulation was not given, the motion was granted. Appeal was taken from such portion of the order as imp osed the condition, and, as granted the order if the stipulation was not given.- Eeld, that the portion appealed from was so coupled with the other parts of the order as not to constitute a judicial decision, and that the notice brought up nothing which could be intelligently reviewed.

Appeal by the proponent of the will from an order made at the Erie special term on motion of the contestant for a struck jury.

Shire & Van Peyma, for proponent, Greo. W. Eockwell, app’lt; Oreen & Marcy, for contestant, John J. P. Eeed, resp’t.

In disposing of a motion for a struck jury, made in behalf of the contestant of the last will of Elizabeth A. S. E. Eockwell, the court ordered a denial of the same, provided that the proponent should stipulate that jurors who might be called on the trial at the circuit in the regular panels, might be permitted to sit in a trial of the issues, notwithstanding the fact that they had read newspaper accounts of the controversy and had formed opinions thereon; or had conversed with anyone upon the subject-matter of the litigation upon the merits. In case such stipulation was not given, then the motion, as originally made, was granted.

The appeal is only from so much of the order as imposes the condition upon the proponent of the will, in case the application should be denied, and from the granting of such application in case such stipulation is not given. This notice brings up nothing which we can intelligently review. The portion of the order appealed from cannot be separated from the order as a whole, for it does not in itself contain a separate and distinct direction, but is so coupled with other parts of the order as not to constitute a judicial decision. A struck jury would not be amenable to many provisions disqualifying the ordinary juror. This may have influenced the mind of the learned judge at special term, as is suggested by the counsel for the respondent; so that, as a favor to the appellant, he would give him in fact a struck jury, which should be obtained from a regular panel drawn in the usual way as a sort of a compromise between absolutely granting and

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absolutely denying the motion. Had not this condition been imposed, the motion would have been granted as a whole. If we should now reverse the order for the reason that we think the conditions were unwarranted, it would result in the absolute denial •of the motion for a struck jury, which is plainly contrary to the intention of the special term. Tribune Association v. Smith, 40 N. Y. Supr. Ct., 81 ; Havemeyer v. Havemeyer, 44 id., 170 . Had the contestant, rather than the proponent, appealed from the order upon the ground that the motion ought not to have been defeated by the proponent’s giving such a stipulation, a different question would be before us, for then would be presented an appeal from the whole order and the point made available, that if the application was proper it ought not to have been defeated by any such concession coming from the other side.

The appeal should be dismissed, with ten dollars costs and disbursements.

Dwight, P. J., and Corlett, J., concur.