§ 1052. A third jury box to be kept. The county clerk must keep, in addition to the two boxes specified in the last two sections, a third box, in which he must deposit duplicate ballots, containing the names, with the proper additions, of all persons, selected and returned as trial jurors, who reside in the city or town, where a trial term of a court of record is appointed to be held, pursuant to law. L. 1861, ch. 210. 1 (4 Edm. 649), am'd. § 1053. When old ballots therein to be destroyed and new ballots deposited. The ballots, kept in the third box, must be destroyed by the clerk, and new bal lots must be deposited therein by him, at the same time, and under like circumstances, as prescribed in this article, with respect to the destruction of the old ballots, and the depositing of new ballots, in the first box. New. § 1054. Jurors, when to be drawn from third box. If a sufficient number of trial jurors, duly drawn and notified, do not attend or cannot be obtained, to form a jury, the court may, in its discretion, direct the sheriff to draw from the third box, in the presence of the court, the names of as many persons, as the court deems suffi cient for that purpose. L. 1861, 2. § 1055. How such jurors to be notified.-The sherift must forthwith notify each person so drawn, and make a return, as prescribed in title fifth of this chapter, where talesmen are required to attend; and the provis lons of that title apply to each person so notified. Id., 3. See post, ? 1171. § 1056. [Amended, 1895.] Justice of supreme court, or county judge, may order drawing of additional jurors.- A justice of the supreme court, appointed to hold a trial term of the supreme court, may, by an order under his hand, direct that such a number of jurors, as he deems necessary, not exceeding twentyfour, be drawn for that term, in addition to the thirtysix jurors, to be drawn as prescribed in the foregoing sections of this article. A county judge may, in like manner, direct the drawing of a like additional number of jurors, for a term of the county court, to be held in his county. In effect Jan. 1, 1896; L. 1895, ch. 946. 2 R. S. 417 (2 Edm. 434); and L. 1874, ch. 52, § 1 (9 Edm. 856). 1057. Proceedings upon such order.-An order, made as prescribed in the last section, must be delivered to the clerk of the county, in which the term is to be held, at least twenty days before the day appointed for the commencement thereof; and the clerk must forthwith file it. This article applies to the additional jurors, so required to be drawn. Id., § 42. § 1058. [Amended, 1895.] For what courts, and by whom, additional jurors may be ordered. - At a trial term of the supreme court, or of the county court, an order may be made by the court, requiring the clerk of the county to draw, and the sheriff to notify, any number of trial jurors, specified in the order, which the court deems necessary, to attend that term, or a term thereafter to be held, either by original appointment or by adjournment, at the commencement thereof, or on a particular day, specified in the order. In effect Jan. 1, 1896; L. 1895, ch. 946 L. 1871, ch. 16, part of § 1, amending L. 1870, ch. 409 (7 Edm. 732), am'd. See Bennett v. Matthews, 40 How. 428. 1059. How such additional jurors drawn and notified. The clerk must thereupon forthwith bring into court, all the boxes, wherein ballots, containing the names of trial jurors are deposited, as prescribed in this article; and must, in the presence of the court, publicly draw from such box or boxes as the court directs, the number of trial jurors specified in the order. The clerk must make and certify two lists of the persons so drawn; and must file one list in his office, and deliver the other to the sheriff. The sheriff must thereupon immediately notify each person so drawn, to attend, as specified in the order. L. 1871, ch. 16, part of § 1, am'd. § 1060. [Amended, 1895.] Power of county judge, as to attendance of jurors.-The county judge may, at the time of drawing trial jurors to attend a term of the county court, make an order, designating a particular day, during the term, when the jurors must attend, or two or more particular days, upon each of which a portion of the jurors must attend. The sheriff must thereupon notify them to attend, as specified in the order. In effect Jan. 1, 1896; L. 1895, ch. 946. § 1061. Powers of deputy county clerk, under this article. The deputy county clerk possesses, in the absence of the county clerk from his office, or from the sitting of a term of the court, the powers conferred by this article upon the county clerk. New. § 1062. This article not applicable to New-York and Kings counties. -- This article does not apply to the city and county of New-York, or the county of Kings. ARTICLE THIRD. MODE OF STRIKING AND PROCURING A SPECIAL JURY, AND OF PROCURING A FOREIGN JURY. SEC. 1063. What courts may order a special jury to be struck. 1064. Party obtaining order to give eight days' notice. 1065. Mode of striking jury. 1066. Jurors so drawn to be notified to attend. 1067. Jury to be formed as in other cases. 1068. Provision where clerk or commissioner of jurors is interested, 1069. Party applying for special Jury to pay expenses. 1070. Copy of order for foreign jury to be delivered to sheriff § 1063. [Amended, 1895.] What courts may order a special jury to be struck. 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, 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. (1) The order must specify the term, and it may specify a particular day in the term, when the jurors must attend. In effect Jan. 1, 1896; L. 1895, ch. 916. 2 R. S. 418, 46 (2 Edm. 435), as amended by L. 1857, ch. 530, further am'd. (1) Spence v. Sampson, 1 Cal. 498; Manhattan Co. v. Lydig, d. 380; s. c., Col. & C. Cas. 423; Livingston v. Columbia Ins. Co., 2 Cal. 28; Col. & C. Cas. 339; Hartshorn v. Gelston, 3 Caf. 84; Van Vechten v. Hopkins, 2 Jobns. 233; Thomas v. Croswell, 4 id. 491; Livingstone. Cheetham, 1 1d. 61; New Windsor Turnpike Co. v. Ellison, id. 141; Genet v. Mitchell, 4 d. 186; Patchin v. Sands, 10 Wend. 570; Anonymous, 1 Johns, 314; Wright v. Columbia Ins. Co., 21d. 211; Walsh v. Sun Mat. Ins. Co., 2 Robt. 646; s. c., 17 Abb. 356; Poncher v. Livingston, 2 Wend 296; People v. McGuire, 43 How. 67; Nesmith v. Atlantic Ins. Co.. Abb. 423; Thomas v. Rumsey, 4 Johns. 482; Livingston v. Smith, 1 iá. 141; Patchin v. Sands, 10 Wend. 570. § 1064. [Amended, 1895.] Party obtaining order to give eight days' notice.- Unless the order specifies, or directs the officer, who is to strike the jury, to fix a time for the parties to attend, the party obtaining it must give at least eight days' notice of the time when he will attend, before the clerk of the county in which the action is triable, or, if it is triable in the city and county of New-York, or the county of Kings, before the commissioner of jurors, for the purpose of having the jury struck. In effect Jan. 1, 1896; L. 1895, ch. 946. 1065. [Amended, 1877.] Mode of striking Jury At the time appointed, the clerk, or, in his absence, the deputy-clerk, or the commissioner, as the case requires, must attend at his office, with the original lists or books, filed or kept in his office, as required by law, containing the names of the persons who are then liable to serve as trial jurors; and, in the presence of the parties, or their attorneys or counsel, must strike a trial jury, as follows: 1. The clerk, deputy-clerk, or commissioner, must select from the lists or books, the names of forty-eight persons, whom he deems most indifferent between the parties, and best qualified to try the issue; and must make and certify a list of those names. 2. The party, on whose application the special jury was directed to be struck, or his attorney or counsel, may then first strike from the list one name; the adverse party or his attorney or counsel may then strike therefrom one name; and so alternately, until each party has stricken out twelve names. 3. If either party fails to attend, at the time and place of striking the jury, or neglects to strike out a name, the clerk, deputy-clerk, or commissioner, must strike for him. 4. The clerk, deputy-clerk, or commissioner, must thereupon make out a list of the names of the twentyfour persons not stricken out, and must certify that it is a correct list of the persons, drawn to serve as jurors. pursuant to the order of the court. He must immedi ately deliver the list so certified, and a certified copy of the order, to the sheriff of the county. If the list, from any ward or town, cannot be found, the clerk must make a new list from the ballots then in use for jurors for that ward or town, and must use that list, upon striking the jury, in place of the original list. 2 R. 8. 418, 48, as amended by L. 1876, ch. 69. People v. Tweed, 50 How. 262, 280; 286. § 1066. Jurors so drawn to be notified to attend.The sheriff must notify the persons whose names are contained in the list; and must return the names of those notified, to the term, at which they are required to attend, as prescribed by law for notifying and returning ordinary trial jurors. Id., 49. See L. 1858, ch. 322, 36, as modified by L. 1873, ch. 166, § 1. § 1067. [Amended, 1895.] Jury to be formed as in other cases.- From the persons so notified and attending, a jury must be formed for the trial, and the issue must be tried, as prescribed in this chapter with respect to an ordinary jury trial. The court has the same power to excuse or discharge a juror, and to cause additional jurors to be drawn, or talesmen to attend, as upon an ordinary jury trial. But the court may, in its discretion, set aside an additional juror so drawn, or a talesman, upon the objection of either party, without a formal challenge, but neither party shall have more than two peremptory challenges. In effect Jan. 1, 1896; L. 1895, ch. 946. 1068. [Amended 1884.] Provision where clerk or commissioner of jurors is interested. If it appears to the court, to which an application for a special jury is made, that the clerk, or the commissioner of jurors, as the case may be. is interested in the action; or is related to either of the parties; or is not indifferent between them; the court must appoint two disinterested persons to strike the jury; and the court may, in its discretion, in any case appoint two such persons to strike such jury. The persons so appointed possess, for the purposes of the action, all the powers conferred, by this article, upon the clerk, or the commissioner of jurors. Id., 251. 1069. Party applying for special jury to pay expenses. The expense of striking a special jury must be paid by the party applying for it, and shall not be taxed in the costs of the action. |