Fulton v. Yuill

5 Citing cases

  1. Jefferson County v. Berkshire Development Corp.

    277 Ala. 170 (Ala. 1964)   Cited 12 times

    The Alabama court has said that, in failing in a reasonable diligence in testing jurors on voir dire as to their qualifications or grounds of challenge, there is waiver of ground of challenge; Batson v. State ex rel. Davis, 216 Ala. 275, 113 So. 300. In Fulton v. Yuill, 24 Misc. 285, 53 N.Y.S. 707, the court held that failure to administer an oath to jurors in a justice court was fatal to their verdict and the judgment thereon. This, however, was an appeal and the judgment, being reversed, does not appear to have been held void.

  2. Barnaby v. Coreman

    25 Misc. 3d 855 (N.Y. Sup. Ct. 2009)   Cited 3 times

    It should not be up to counsel, by failure to be present at the hearing or to speak out in a timely fashion, to waive an issue that is at the heart of the adversary system: the credibility of a person within the senses, orbit, and realm of the truth. Second, the failure to swear a witness cannot be dismissed as a mere irregularity which may be waived, such as the failure to swear, for instance: (1) a jury ( e.g., Arker v Cohen, 136 App Div 871 [2d Dept 1910]; Collinson, 91 Misc 501, supra; Cahill v Delaney, 68 NYS 842 [Fulton County Ct 1901]; see also People v Quinones, 18 AD3d 330 [1st Dept 2005], lv denied 5 NY3d 809 [delayed swearing of the jury in a criminal case held harmless]; People v Morales, 168 AD2d 85 [2d Dept 1991] [same], lv denied 78 NY2d 970; but see Fulton v Yuill, 24 Misc 285, 286 [Sullivan County Ct 1898] [reversing judgment for failure to swear the jury, court stated: "Who can say that the jury did not reason with their own conscience and their own private feelings, and say — we are at liberty to do as we see fit, regardless of the law or the fact, so long as we are not under oath"]); (2) an arbitrator ( e.g. Day v Hammond, 57 NY 479; Matter of Chawki v New York City Dept. of Educ. Manhattan High Schools, Dist. 71, 39 AD3d 321, 324 [1st Dept 2007], lv denied, 9 NY3d 810; Box v Costello, 6 Misc 415 [Buffalo Super Ct 1893]); (3) a confidential informant in a warrant application ( e.g. United States v Smith, 9 F3d 1007, 1014 [2d Cir 1993] [failure to swear the confidential informant does not undermine the validity of the warrant issued]); or (4) a translator ( e.g. People v Bicet, 180 AD2d 692 [2d Dept 1992], lv denied 79 NY2d 1046; accord United States v Kramer, 741 F Supp 893 [SD Fla 1990] [no error for failure to swear translators]; Obando v State, 988 So 2d

  3. People v. Bestle

    22 Misc. 2d 1088 (N.Y. Cnty. Ct. 1960)   Cited 4 times
    In People v Bestle (22 Misc.2d 1088) the failure to swear the jury in a criminal case prior to the taking of testimony was held to be fatal error to the proceedings, and not subject to waiver.

    Another civil authority holding that the failure to swear a jury is an irregularity, only, will be found in Becker v. Becker ( 92 Misc. 382) and the cases therein cited. There is however, the case of Fulton v. Yuill ( 24 Misc. 285) which determines that the failure to swear a jury is a fatal error and cannot be disregarded. This likewise was a civil case.

  4. Becker v. Becker

    92 Misc. 382 (N.Y. Misc. 1915)   Cited 2 times

    " The plaintiff relies upon the case of Fulton v. Yuill, 24 Misc. 285, in which omission of the oath was held to be fatal to the judgment. It does not appear whether on the trial the defeated party in the above case had his attention called at the time to the fact that the jury had not been sworn.

  5. Sloan v. Dickey

    68 Misc. 593 (N.Y. Misc. 1910)

    It is provided by section 722 of the Code, that: "Each of the omissions, imperfections, defects and variances specified in the last section, and any other of like nature, not being against the right or justice of the matter, and not altering the issue between the parties, or the trial, must, when necessary, be supplied, and the proceeding amended by the court wherein the judgment is rendered, or by an appellate court." It was held in Fulton v. Yuill, 24 Misc. 285, that section 721 of the Code has no application to courts of justices of the peace, and that there is no power in the County Court on appeal to correct errors or omissions, and that there is no power to exercise discretion for such purposes. Westbrook, J., in Snyder v. Schram, 59 How. 404, corrected the date of service in the constable's return by adding the figure 2 just before the figure 3, so that, as corrected, it read 23d instead of 3d day of January. The learned county judge said: "The constable's return of service does not show that the summons was not served six days before it was returnable.