Ives v. Ranger — 47 N.Y. St. Rep. 390

Majority

p. 390

Margaret S. Ives, App’lt, v. Gustave Ranger et al., Resp’ts.

(Supreme Court, General Term, Second Department,

Filed July 22, 1892.)

Headnote

Jury—Struck, will only be ordered in extraordinary cases.

Where a case involves only private interests and assumes no public im" portance, and there is no fear of inability to obtain a fair and impartial jury, the court will not order a struck jury merely because on the trial of a similar action the jury disagreed. Such a jury will only be ordered in an extraordinary case.

Appeal from order of special term for a special jury for the trial of this action.

Charles F. Mac Lean, for app’lt; Hoadley, Lauterbach & Johnson, for resp’ts Ranger et al., Emmett & Robinson, for resp’t New York Life Ins. & T. Co.

—This is an appeal from an order made at the special term for a special jury for the trial of this action, and the justification of the order requires us to determine from the papers presented that a fair and impartial trial cannot be had without such a jury, and that the importance and intricacy of the case requires it.

The action is ejectment for the recovery of two parcels of real property in the town of Greenburgh, and the plaintiff is a granddaughter of Francis W. Lasak, who died seized and possessed of the premises.

The plaintiff claims to recover by descent as one of the heirs of Lasak, and proceeds upon the theory of his intestacy.

The defendants, on the contrary, claim that Lasak left a last will and testament which disposed of this property to the exclusion of the plaintiff.

There has been a trial of another action of ejectment brought by a daughter of Lasak, which proceeded upon the same lines with this, and the jury failed to agree upon a verdict.

The case is no more important than any other action involving the testamentary disposition of property.

In such actions the capacity of the testator and his subjection to undue influences are brought in question to be determined by the jury, and that is the only method we have for the decision of those questions.

It is to be noted here that only private interests are involved, and the case assumes no public importance.

The case has excited no public interest, there is no fear manifested of any inability to obtain a fair and impartial jury, and no claim of any unfairness or partiality upon the former trial.

It may be mentioned that we have now in Westchester county a commissioner of jurors under a new law of the last legislative ses

p. 391

sion, and a new method of making and revising the jury list, which is an improvement upon the former system.

The beaten way of judicial procedure is provided for the administration of justice, and experience demonstrates the propriety of continuance therein. Extraordinary and unusual proceedings involve the employment of new machinery and new methods, and thus raise and present new questions, and continue litigation.

Moreover, the teaching of experience is in favor of the jury summoned in the ordinary manner. The most important questions involving life, liberty and property are constantly submitted to the ordinary jury with satisfactory results, and it requires an extraordinary case to justify the issuance of an order for a special jury._

If it is to be assumed that a special jury is to be composed of extraordinary members, it is quite doubtful whether such men will be as likely to agree and produce results as satisfactory as the jury of conservative men such as are ordinarily found upon juries.

We find nothing in the circumstances of this case which requires a departure from the ordinary mode of procedure, and we think the order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Barnard, P. J., and Cullen, J., concur.