Adams v. Morgan — 51 N.Y. St. Rep. 187

Majority

p. 187

John P. Adams, App’lt, v. Henry A. Morgan, Pres’t of the New York Times, Resp’t.

(Supreme Court, General Term, Second Department,

Filed February 13, 1893.)

Headnote

Jury — Special—Libel.

A libel suit, important only to the immediate parties and concerning which no public excitement is shown to exist, is not one calling for a special or struck jury, although the papers claim that the action involves the official misconduct of a person who is claimed to be a brother of the commissioner of jurors.

Appeal from order directing that a special jury be struck for the trial of the action.

Frederic A. Ward and George G. Reynolds, for app’lt; Townsend, Dyett & Einstein (Henry Yonge, of counsel), for resp’t.

This is an appeal from an order directing a special jury to be struck for the trial of this action.

The action is for libel, and the answer contains a general denial, facts in justification, and facts in mitigation of damages.

The provision of the Code upon which the motion was made is this: “ Where it appears to the court that a fair and impartial trial of an issue of fact, triable by a jury, joined in an action pending in the supreme court, or in the superior city court, cannot be had without a struck jury, or that the importance or intricacy of the case requires such a jury, the court must make an order upon notice directing a special jury to be struck for the trial of the issue.” Code, § 1063.

This statute is plain and unambiguous, and requires a struck j ury when it appears to the court that a fair and impartial trial of an issue of fact triable by a jury in the supreme court, or in a superior city court, cannot be had without it, or that the importance or intricacy of the case requires it

What appears to the court in this case upon the subject of a fair and impartial trial is contained in the pleadings and the papers used on this motion.

The action is for a libel, and the moving affidavit says it involves the official misconduct of other public officers, among others, a person who, it is alleged, is interested in the contract for

p. 188

cleaning the streets, and whom the affiant was informed and believes was a brother of the commissioner of jurors.

The answering affidavit states that this is a mistake, but it is not very important.

We can find nothing in the papers to justify an inference or belief that a fair and impartial trial of this action cannot be had before a jury formed in the ordinary way.

There is no claim of any public excitement in the county respecting the action, and the safe-guards thrown round the formation of juries in Kings county render it impossible for the introduction of any improper practice in that respect

Neither does the importance or intricacy of the case require a struck jury. It is not an intricate case, and it is important only to the immediate parties.

It is not as intricate either, in the law or facts involved, as a border negligence case, and such cases are tried before the ordinary juries at many circuits with satisfactory results.

Libel suits are not infrequent and the law which controls them is well settled and understood, and the questions of fact submitted to the jury in such cases are not unusually intricate. The order should be reversed, with ten dollars costs and disbursements, and the motion should be denied, with ten dollars costs.

Barnard, P. J., and Pratt, J., concur.