1161. A physician, who knowingly gives a fase certificate, or makes a false representation, for the purpose of enabling or assisting a person, to be discharged, excused, or exempted from service, as a trial juror in the county of Kings, is guilty of a misdemeanor.

1162. The commissioner of jurors must make a yearly report to the board of supervisors, of all proceedings had before him, or by him in the discharge of his duties; and he must pay over to the county treasurer, at least once in each three months, all money in his hands, which he has received

as commissioner.

TITLE V.

Trial by jury.

ARTICLE 1. Formation of the jury.
2. The verdict.

ARTICLE FIRST.

FORMATION OF THE JURY.

1163. Clerk to prepare ballots of jurors for trial.

1164. Clerk to draw ballots. 1165. Mode of drawing ballots. 1166. Persons drawn, etc., to form the jury.

1167. Ballots drawn, when to be deposited in a second box.

1168. Id.; when to be returned to the first box.

1169. Ballots of absentees, etc., to be returned to first box.

1170. New jury may be drawn while first is empannelled.

1171. When talesmen to be procured, or jurors drawn from third box. 1172. When talesmen to be procured.

1173. If sheriff is a party, court

only some of original panel.

1176. Two peremptory challenges in a civil action.

1177. No challenge allowed because officer drawing is a party, etc.

1178. No challenge allowed because officer notifying is a party, etc. Challenges in penal act

1179.

ions.

1180. Challenges how tried. Exceptions to and review of the determination of the court, in reference thereto.

$1163. At the opening of a term of a court of record at which issues of fact are to be tried by jury, the clerk must cause ballots, uniform, as nearly as may be, in appearance, to be prepared, by writing the name of each person, returned to the term as a trial juror, with his proper additions, on a separate piece of paper. He must roll up or fold each ballot, in the same manner, as nearly as may be, so as to resemblé the others, and so that the name is not visible. The ballots must be deposited in a sufficient box, from which they must be drawn, as prescribed in this article.

1164. When an issue of fact, to be tried by a jury, is brought to trial, the clerk, under the direction of the court, must openly draw, out of the box, as many of the ballots, one alter another, as are sufficient to form a jury.

1165. Before the first ballot is drawn, the box must be closed and well shaken, so as thoroughly to mix the ballots;

and the clerk must draw each ballot, without seeing the name written on any of them, through an aperture, made in the lid of the box, large enough only to admit his hand conveniently.

§ 1166. [Am'd 1883.] The first twelve persons who appear, as their names are drawn and called, and approved as indifferent between the parties, and not discharged or excused, must be sworn, and constitute the jury to try the issue. Persons shall be disqualified from sitting as jurors if related by consanguinity or affinity to a party to the issue in the same cases in which judges are disqualified. The party related to the juror must raise the objection before the ease is opened; but any other party to the issue may raise the objection within six months from the date of verdict.

$1167. The ballots, containing the names of the jurors so sworn, must be then deposited in another box, and there kept, apart from the other ballots, until that jury is discharged.

1168. After that jury is discharged, the ballots containing their names must be again rolled up or folded, as prescribed in section eleven hundred and sixty-three of this act, and returned to the box, from which they were first taken and the same course must be pursued, as often as an issue is brought to trial by a jury.

§ 1169. The ballot, containing the name of a juror, who is absent, when his name is drawn or called, or is set aside, or excused from serving on that trial, must be again rolled up or folded, in the same manner as before, and returned to the box, containing the undrawn ballots, as soon as the jnry is

sworn.

1170. If an issue is brought to trial by a jury, while a jury is empannelled in another cause, at the same term, and not then discharged, the court may order a jury, for the trial of that issue, to be drawn out of the box containing the ballots then undrawn; but, in any other case, the ballots, containing the names of all the trial jurors, returned at, and attending the term, must be placed together in the same box, before a jury is drawn therefrom.

§ 1171. [Am'd 1879.] I a sufficient number of jurors, duly drawn and notified, do not attend, or cannot be obtained, to form a trial jury, the court may, in any county except Westchester, direct the sheriff to require the attendance of such a number of talesmen, from the bystanders, or from the county at large, qualified to serve as trial jurors, as it deems sufficient for the purpose. In Westchester county, the court must direct the sheriff to draw a sufficient number of ballots from the first box, specified in section ten hundred and thirty-eight of this act; if there is not a sufficient number of ballots remaining therein, to draw the residue from the second box, specified in section ten hundred and fifty-one of this act. In any other county, except New York and Kings, it may, in its discretion, instead of directing him to require talesmen to attend, direct him to draw a sufficient number of ballots from the third box, specified in section ten hundred and fifty-two of this act. In either case, the sheriff must notify the persons thus drawn to attend forthwith, or upon a day fixed by the court, If for any reason a sufficient number of

jurors to try the issue is not obtained, from the persons notified, under an order made as prescribed in this section, the court may make another order, or successive orders, until a sufficient number is obtained; and in making each order, the court may exercise the same discretion as in making the first order.

1172. In any county, except New York, Kings, or Westchester, the court may also direct the sheriff to require the attendance of such a number of qualified talesmen, for the trial of an issue of fact, as it deems sufficient, where, by reason of one or more juries being empanelled, or for any other reason, no ballot remains undrawn; or where, in consequence of jurors being set aside, a juror cannot be obtained, for the trial of that issue, from the list of those returned.

$1173. If, in a case specified in the last two sections, the sheriff is a party to the issue, the court must appoint a disinterested person, to act in place of the sheriff. For that purpose, the person so appointed possesses all the powers, and is subject to all the duties and liabilities of the sheriff, with respect to the matters specified in those sections.

$1174. The sheriff, or person appointed by the court, must notify the requisite number of persons to attend, and make return thereof, as prescribed in section ten hundred and forty-eight of this act; except that each person must be required to attend forthwith. Each person so notified must attend forthwith, and, unless excused by the court or set aside, must serve as a juror upon the trial. For a neglect or refusal so to do, he may be fined, in the same manner as a trial juror, regularly drawn and notified, as prescribed in this chapter; and he is subject to the same exceptions and challenges, as any other trial juror.

$1175. [Am'd 1877.] It is not a valid objection to a jury, procured as prescribed in the last four sections, that it contains none of the jurors originally returned to the term, or is only partially composed of such jurors.

§ 1176. [Am'd 1891, 1894.] Upon the trial of an issue of fact, joined in a civil action in a court of record, each party may peremptorily challenge not more than six and in a court not of record, each party may peremptorily challenge not more than three of the persons drawn as jurors for the trial.

$1177. It is not a good cause of challenge, to the panel or array of trial jurors, in an action in a court of record, that the officer who drew them is a party to, or interested in the action, or counsel or attorney for, or related to, a party.

1178. It is not a good cause of challenge to the panel or array of trial jurors, in an action in a court of record, that they were notified to attend by an officer, who is a party to, or interested in, the action, or related to a party; unless it is alleged in the challenge, and is established, that one or more of the jurors drawn were not notified, and that the omission was intentional.

1179. In a penal action, in a court of record, or not of record, to recover a sum of money, it is not a good cause of challenge to a trial juror, or to an officer who notified the trial Jurors, that the juror or the officer is liable to pay taxes, in a city, town, or county, which may be benefited by the re

covery.

49 Hun, 396. 121N.Y. 112.

24 N.Y.State Rep. 662.

26 App. Div. 587.

§ 1180. [Am'd 1877.] An objection to the qualifications of a juror is available only upon a challenge. A challenge of a juror, or a challenge to the panel or array of jurors, must be tried and determined by the court only. Either party may except to the determination, and it may be reviewed, upon a question of fact, or a question of law, or both, as where an issue of fact presented by the pleadings is tried by the court; except that where one or more exceptions are taken, to the rulings of the court, made after the jury is empanelled, an exception to the determination of a challenge must be heard at the same time; and the case must contain the matters necessary to present it, upon the facts, or the law, or both.

§ 1181. Where a jury is empanelled to try an issue, to make an inquiry, or to assess damages, in an action in a court of record, or not of record, or in a special proceeding before an officer, if the jurors cannot agree, after being kept together, for such a time as is deemed reasonable, by the court before which, or the officer before whom, they were empanelled, the court or officer may discharge them, and issue a precept for a new jury, or order another jury to be drawn, as the case requires; and the same proceedings must be had before the new jury, as if it was the jury first empanelled.

§ 1182. It is not necessary, in an action in a court of record, to call the plaintiff, when the jurors are about to deliver their verdict; and the plaintiff, in such an action, cannot submit to a nonsuit, after the cause has been committed to the jury, to consider of the verdict.

§ 1183. In an action to recover a sum of money only, if a verdict is found, either in favor of the plaintiff, or in favor of a defendant, who has set up a counterclaim for a sum of money, the jury must assess the amount of damages. The jury may also, under the direction of the court, assess the amount of the damages, where the court directs judgment for the plaintiff, on the pleadings.

S1184. Where double, treble, or other increased damages, are given by statute, single damages only are to be found by the jury; except in a case where the statute prescribes a different rule. The sum so found must be increased by the court, and judgment rendered accordingly.

§ 1185. [Am'd 1879.] Where, upon the trial of an issue by a jury, the case presents only questions of law, the judge may direct the jury to render a verdict, subject to the opinion of the court. Notwithstanding that such a verdict has been rendered, the judge holding the trial term may, at the same term, set aside the verdict, and direct judginent to be

entered for either party, with like effect and in like manner, as if such a direction had been given at the trial. An exception to such a direction may be taken as prescribed in section nine hundred and ninety-four of this act.

§ 1186. A general verdict is one, by which the jury pro- 31 Abb. N.C. nounces, generally, upon all or any of the issues, in favor 480. either of the plaintiff, or of the defendant. A special verdict is one, by which the jury finds the facts only, leaving the court to determine, which party is entitled to judgment thereupon.

§ 1187. [Am'd 1895, amendment to take effect January 1, 1896.] In an action to recover a sum of money only, or real property, or a chattel, the jury may render a general or spe: cial verdict, in its discretion. In any other action, except where one or more specific questions of fact, stated under the direction of the court, are tried by a jury, the court may direct the jury to find a special verdict, upon all or any of the issues. Where the jury finds a general verdict, the court may instruct it to find also specially, upon one or more questions of fact, stated in writing. The special verdict or special finding must be in writing; it must be filed with the clerk, and entered in the minutes. When a motion is made to nonsuit the plaintiffs or for the direction of a verdict, the court may, pending the decision of such raotion, submit any question of fact raised by the pleadings to the jury or require the jury to assess the damage. After the jury shall have rendered a special verdict upon such submission or shall have assessed the damage, the court may then pass upon the motion to nonsuit or direct such general verdict as either party may be entitled to. On an appeal from the judgment entered upon such nonsuit or general verdict, such special verdict, or general verdict, shall form a part of the record and the appellate division may direct such judgment thereon as either party may be entitled to.

53 N.Y. Sup-
er. Ct. (J. &
31 Abb. N.C.
S.) 52.
447n.

80 Hun, 567.

22 Misc. 73. 22 App. Div.

156.