Max Maretzek, plaintiff, vs. William Cauldwell et al. defendants.Headnote
1. In an action to recover 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. ■ ’ •2. Such an opinion does not amount to absolute incompetency, and is therefore only a ground of challenge to the favor,
(Before Robertson, Ch. J.,-at special term, April —, 1867.)Motion for a new trial. This action was bronght by Max Maretzek, the manager of an opera in the city of New 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 of New York, to recover damages for two articles published therein, in October, 1863. The first article ivas 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.” This article made the same charges with more particularity.
The cause was tried,'at a trial term of the court, at which, upon the impanelling, of the jury, the plaintiff" challenged a juror named Meyer for principal cause, upon the ground that he was “opposed'to theatrical representations.” The juror was upon that challenge excluded by the court, and upon 'the trial the jury rendered a verdict for $1000 in favor of the plaintiff Upon this ground, among others, the defendants moved for a new trial.
A. Oahey Sail, for the motion..
S. B. S, Judah, opposed.
If the case on which this motion was made be correct, there was a fatal error committed on the former trial. A juror, (Meyer,) after a challenge of him by the counsel for the defendants had been withdrawn, was 'challenged by the plaintiff’s counsel for principal cause, which challenge was passed upon by the court. The juror having stated that “he was opposed to theatrical representations,” the plaintiff’s counsel claimed that he was.incompetent, and requested the court to exclude him; to which the counsel for the defendants objected. The court excluded the juror, and another was impaniielled in his stead; to which decision and course the counsel for the defendants- excepted.
Such an opinion, entertained by the juror, did not show either such relations to either party, or such bias and in-comp°etency, on account of a. fixed opinion, as amounted in law, to an absolute conclusive prejudging of the matters in issue in this action, so as to constitute a principal cause of challenge, and was therefore at most only a ground of challenge to the favor to be tried in the usual mode.
There must, therefore, be a new trial on the case, with costs to abide the event.