Opinion
March Term, 1868
J. Larocque, for the appellant.
E.R. Robinson, for the respondents.
The respondents claim and insist that no appeal lies to the Court of Appeals from the determination of the General Term in this case. Since the amendment made to section eleven of the Code, by the act of April 17, 1857, chapter 723, of the Laws of 1857, an appeal lies to this court from a final order affecting a substantial right made in a special proceeding at a General Term of the Supreme Court. (Code § 11, sub. 3.) This is not a common law certiorari, where the Supreme Court is limited to a review of the questions of jurisdiction, and the regularity of the proceedings. Under this statutory writ, the Supreme Court is authorized to review at least any question of law arising either in the proceedings or upon the trial, and may review the rulings upon the challenge to jurors; questions of the admission or rejection of evidence; and the charge upon the law of the case to the jury ( Anderson v. Prindle, 23 Wend. 616; Niblo v. Post's Exrs., 25 id. 280; Morehead v. Hollister, 2 Seld. 309), and that court may require the evidence to be returned, and may look into the evidence so far at least as to see whether it showed a conventional relation of landlord and tenant. This was expressly held in this court in the case of Benjamin v. Benjamin (1 Seld. 383).
There can be no doubt, that, upon this statute writ, it is the right and the duty of the Supreme Court to interpose upon this writ to correct mistakes in the law bearing upon the merits of the case, and to see to it that the officer before whom the proceedings were had, kept within the pale of the law in conducting the proceedings. The Supreme Court were fully authorized to review the decision of the justice in this case, in allowing to this defendant a peremptory challenge, and in setting aside Mr. Huntington, a juror, upon such challenge. I am quite satisfied, also, that the Supreme Court was right in holding that the act of April 27, 1847, giving the right of peremptory challenge upon the trial of an issue of fact joined in a civil action, does not apply to such an issue as this, in summary proceedings by the landlord against the tenant to obtain the possession of demised premises. This act provides that, "upon the trials of any issue or issues of fact joined in a civil action, each party shall be entitled peremptorily to challenge two of the persons drawn as jurors for such trial. (Laws of 1847, chap. 134, § 2.)
These summary proceedings are not civil actions within the meaning of the Code. (See §§ 1, 2 and 3, of the Code.) Nor were they so before the passage of the Code. ( Hyatt v. Seely, 1 Kern. 55.) It is not a civil action, as has frequently been held. ( Miner v. Burling, 32 Barb. 540; The People ex rel. Nevins v. Welles, 5 Abb. 206; The People ex rel. Livermore v. Hamilton, 15 id. 328; Haviland v. White, 7 How. Pr. 154; Williams v. Bigelow, 11 id. 86.) The thirty sixth section of the statute, as amended by the act of April 3, 1849 (Laws of 1849, chap. 193), which declares that six of the persons so summoned shall be drawn in like manner as jurors in justices' courts, does not extend the right of challenge in this case. It is a forced and unreasonable construction of the plain language of this statute, to extend it to embrace the peremptory right of challenge to this case. All that this statute says or means, is, that the jury shall be drawn in the same manner as jurors in justices' courts are drawn.
It is confined in its language and meaning to this mode of drawing the jury, and never was intended to alter the law of challenge secured to the parties. The right of challenge depending either upon the common law or statute is one thing, and the drawing the jurors from the panel, summoned, is quite another and different thing. The one has reference to the ministerial duty of the justice and constable; the justice in writing on several and distinct pieces of paper as nearly of one size as may be, and which the constable, in the presence of the justice, is to roll up or fold such pieces of paper as nearly as may be, in the same manner, and put them together in a box or some convenient thing, and then the justice is to draw out the number required. (2 R.S. 243, §§ 99, 100.) While the right of peremptory challenge is the act of the party alone which sets aside the juror drawn, without act, decision or interposition of the justice at all; this act, requiring the jury to be drawn in the same manner as jurors in justices' courts, has reference to this mode and manner of drawing, and ought not to be held as extending by implication and construction the right of peremptory challenge given by the statute of 1847, which, in its very language, limits the right of peremptory challenge to the trial of fact joined in civil actions. The Supreme Court were clearly right in reversing these proceedings for this error of the justice in allowing the defendant's peremptory challenge to the juror, Huntington, and setting him aside.
The judgment of the Supreme Court must be affirmed, with costs to the respondent.
Judgment affirmed.