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character, for in such a case a right to a trial by jury did not exist at common law, and is not secured by the Constitution. The code, therefore, does not apply to a counterclaim in an action to foreclose a mortgage. Mackellar v. Rogers (1888) 109 N. Y. 468, 472, 17 N. E. 350. The same subject is considered in Herb v. Metropolitan Hospital & Dispensary (1903) 80 App. Div. 145, 80 N. Y. Supp. 552, citing authorities relating to issues raised by counterclaim, and suggesting the proper practice under the Code of Civil Procedure.

Court-martial.-A person accused before a court-martial is not entitled to a trial by jury. Such a mode of trial did not exist when the Constitution was adopted, and would be wholly incompatible with the object, end, and organization of courts-martial. People ex rel. Underwood v. Daniell (1871) 6 Lans. 44, affirmed in (1872) 50 N. Y. 274.

Court cannot withdraw case from jury.-In an action at law the court has no power to discharge the jury, and, in their absence, pass upon the questions presented. The Constitution gives the parties the right to have questions determined by the jury, and not by the court. This right may be waived, but parties cannot be deprived of it by the court without their consent. Gansberg v. Sagemohl (1902) 67 App. Div. 554, 73 N. Y. Supp. 984.

Damages.—The act of 1855, chap. 296, so far as it provided for summary proceedings to ascertain the damages caused by a prior unlawful taking of land under an alleged exercise of the right of eminent domain, deprived the owner of the land of the right to resort to a common law remedy for the ascertainment of his damages, and the trial of the issue by a jury, and was therefore unconstitutional. Re Townsend (1868) 39 N. Y. 171.

Decedents' estates.-In Re Kipp (1902) 70 App. Div. 567, 75 N. Y. Supp. 589, a proceeding to compel the payment of a claim for funeral expenses under subd. 3 of 8 2729 of the Code of Civil Procedure as added by the act of 1901, chap. 293, the temporary administrator challenged on appeal the validity of the act, on the ground that it violated the constitutional provision preserving trial by jury; but the appellate division declined to consider the objection, for the reason that it had not been taken in the court below; observing that it was too late to raise that question for the first time on appeal.

Disorderly persons.-Proceedings for the punishment of disorderly persons, and to require sureties to keep the peace, fall within the exceptions included in the colonial act of 1744 and the state acts of 1801 and 1813 in relation to summary convictions for minor offenses.

A trial by jury is not a matter of right in such cases. Duffy v. People (1841) i Hill, 355 (1843) 6 Hill, 75.

The offense of keeping a bawdy house was indictable at common law and triable by jury. 1 Rev. Stat. 638, § 1, so far as it subjects this offense to summary conviction and punishment without a trial by jury, was held unconstitutional. Warren v. People (1857) 3 Park.

Crim. Rep. 544

The legislature cannot, by classing among disorderly persons those who were entitled to a jury trial, take the right away. Selling intoxicating liquors in violation of law was an offense triable by jury under the common law. People ex rel. Killmer v. Baird (1877) 4 N. Y. Week. Dig. 576.

Divorce.-An issue of fact in an action for divorce on the ground of adultery is triable by jury, under the Constitution, but such a trial may be waived. Batzel v. Batzel (1877) 54 How. Pr. 139.

Eminent domain.—The Constitution does not require a jury trial on the assessment of damages where property is taken under the right of eminent domain, as for streets or highways. The provision relates to trials of issues of fact, in civil and criminal proceedings in courts of justice, and proceedings before a jury in highway cases are not jury trials within the meaning of this provision. Livingston v. New York (1831) 8 Wend. 85, 22 Am. Dec. 622; People ex rel. Herrick v. Smith (1860) 21 N. Y. 595.

Proceedings to take land for railroad purposes under the right of eminent domain do not constitute a jury trial within the meaning of the Constitution. Beekman v. Saratoga & S. R. Co. (1831) 3 Paige, 45, 22 Am. Dec. 679.

Equity.—The transfer of causes from the court of chancery to the supreme court, on the abolition of the former court by the Constitution of 1846, did not give the right to a trial by jury in the supreme court. Issues in the court of chancery were triable by the court, but the chancellor might, in a proper case, refer the issue of fact to a jury for determination. Trial by jury was not a matter of right in such a case. Palmer v. Lawrence (1851) 5 N. Y. 389.

Equily actions.—The joinder of an equitable cause of action with others purely legal does not deprive the defendant of the right of trial by jury. Wheelock v. Lee (1878) 74 N. Y. 495, 500; Bradley V. Aldrich (1869) 40 N. Y. 511, 100 Am. Dec. 528.

If the plaintiff fails to make a case in an action for equitable relief, he cannot have a trial of issues in an action for fraud, and an assessment of damages therefor without a jury. The defendant is

entitled to have the issue of fraud tried by a jury. Bradley v. Aldrich (1869) 40 N. Y. 504, 100 Am. Dec. 528.

The jury provision does not apply to actions for equitable relief. When a court of equity acquires jurisdiction of an action it may retain it for all purposes, and will award any damages to which a party may be entitled, although such damages might have been the subject of a separate action, in which the issues would have been triable by a jury. Lynch v. Metropolitan Elev. R. Co. (1891) 129 N. Y. 274, 15 L. R. A. 287, 26 Am. St. Rep. 523, 29 N. E. 315.

A defendant in an action which, under the allegations of the complaint, is purely an "action in equity,” is not entitled to a jury trial as a constitutional right, without reference to what the proofs given upon the trial of such action may or may not establish. Porter v. International Bridge Co. (1903) 79 App. Div. 358, 79 N. Y. Supp. 434 (1903) 175 N. Y. 467, 67 N. E. 1089.

In an ordinary action in equity for an injunction and damages against an elevated railroad company the issues are to be determined by the court without a jury. Pope v. Manhattan R. Co. (1903) 79 App. Div. 583, 80 N. Y. Supp. 316.

Evidence.—The provision in § 12 of the Liquor Tax Law of 1857, chap. 628, that if any person shall be seen to drink in a building occupied by a person licensed to sell liquors, it shall be prima facie evidence that the liquor was sold by the licensee with intent to be drunk on the premises, deprives the accused of the right of trial by jury. The offense was selling liquor with intent that it should be drunk on the premises. The defendant was entitled to have this question tried by a jury. People v. Lyon (1882) 27 Hun, 180.

In Board of Excise v. Merchant (1886) 103 N. Y. 143, 57 Am. Rep. 705, 8 N. E. 484, the validity of the section was sustained, but without special consideration of the jury provision.

Excise.—The provision in the prohibitory law of 1855, chap. 231, authorizing summary convictions for its violation, is not objectionable as denying the right of trial by jury. Trial by jury for offenses below the grade of grand larceny is not secured by the Constitution. People v. Quant (1855) 12 How. Pr. 83.

Under the excise act of 1857, chap. 628, intoxication in a public place was declared to be an offense punishable criminally. The accused was, at his election, entitled to give bail, and demand a trial by jury. Hill v. People (1859) 20 N. Y. 363.

The act of 1873, chap. 549, which authorized boards of excise to cancel liquor licenses, was not a violation of the constitutional provision securing the right of trial by jury. The regulation of the

liquor traffic is a subject of exclusive legislative discretion (Metropolitan Board of Excise v. Barrie (1866] 34 N. Y. 657), and the license is a mere permit, which may be revoked under conditions to be prescribed by the legislature. People ex rel. Presmeyer v. Police & Excise Comrs. (1874) 59 N. Y. 92.

Certificates issued under the liquor tax law of 1896, chap. 112, are property (People v. Durante (1897] 19 App. Div. 292, 45 N. Y. Supp. 1073), but such certificates are issued under statutory provisions declaring their status and the conditions under which they may be revoked, and applicants take them with all the privileges and subject to all the burdei is imposed upon them by law. They may be revoked by the court without a trial by jury. Re Livingston (1897) 24 App. Div. 51, 48 N. Y. Supp. 989; Re Lymon (1901) 59 App. Div. 217,' 69 N. Y. Supp. 309.

Ex parte proceedings. The act of 1865, chap. 26, which authorizei the commitment of a person to the New York State Inebriate Asylum on ex parte affidavits, and without any provision for his examination as to the truth of the acts charged, was held unconstitutional in Re Janes (1866) 30 How. Pr. 446.

Habitual criminals.—The act of 1873, chap. 357, providing for the summary conviction of habitual criminals who were declared to be disorderly persons, did not deprive them of the right of trial by jury. Such persons were not entitled to trial by jury before the adoption of the Constitution. People v. McCarthy (1873) 45 How.

Pr. 97

Impartial jury.—The constitutional provision not only secures the right of trial by jury, but it guarantees a trial by an impartial jury. This right was not impaired by the act of 1872, chap. 475, which authorized a juror to sit in criminal cases, although he had formed an opinion as to the guilt or innocence of the accused, provided he would declare on oath, and the court should be satisfied, that he could determine the case impartially, without being influenced by such previous opinion. The court must determine the question of impartiality; this determination, being based on an examination of the juror, and his own oath as to his competency, is sufficient to insure a jury as impartial as could probably have been secured under the common law. A jury is obtained under regulations prescribed by law, and the legislature may change these regulations, provided the right to an impartial jury is not thereby impaired. Stokes v. People (1873) 53 N. Y. 164, 13 Am. Rep. 492.

Indian lands. A citizen who enters upon lands held by Indians before their title has been extinguished and they have been removed

by the act or approbation of the government acquires no such rights of property or possession as are contemplated by the Constitution. He must be regarded as a trespasser and an intruder, subject to removal by summary proceedings in the same manner as he would be from the public domain or other property of the state, and is not entitled to a trial by jury. The state has the right, without the determination of a judicial tribunal, to provide for a summary removal of such intruders. There is nothing to be tried and nothing for the court to determine in respect to the right of occupancy and possession. Such a removal does not affect a party's right of action to assert his title to the land from which he has been removed. People ex rel. Cutler v. Dibble (1857) 16 N. Y. 203, affirmed in (1858) 21 How. 366, 16 L. ed. 149.

Intoxication.—The offense of intoxication in a public place may be summarily tried by a magistrate without a jury, and in such a case the defendant is not entitled to a jury trial. The class of disorderly persons may be enlarged by the addition of others, without subjecting the new case to the operation of the jury provision of the Constitution. People v. Burleigh (1883) i N. Y. Crim. Rep. 522.

Under the act of 1857, chap. 628, the offense of public intoxication was not subject to summary trial and conviction, but the defendant was entitled to give bail and be tried on an indictment. People v. Putnam (1857) 3 Park. Crim. Rep. 386. This rule was changed by the act of 1869, chap. 856.

Justices' courts.—The right of trial by jury is not impaired by increasing the jurisdiction of justices' courts, and thereby authorizing actions in those courts triable before a jury of six men, instead of in the supreme court, triable before a jury of twelve men, where the action must have been brought if the jurisdiction of the inferior court had not been extended. Trial by jury is still preserved. Dawson v. Horan (1868) 51 Barb. 459; Knight v. Campbell (1872) 62 Barb. 16.

Liens.—The act of 1862, chap. 482, giving a lien on vessels for labor and materials, and authorizing the enforcement of the lien by proceedings in rem, is not obnoxious to the provision preserying trial by jury. Similar proceedings for the enforcement of liens had been authorized before the adoption of the Constitution, and a party was not entitled, as a matter of right, to a trial by jury in such cases. Sheppard v. Steele (1870) 43 N. Y. 52, 3 Am. Rep. 660.

An action to foreclose a mechanic's lien is a suit in equity, triable by a court without a jury, in which neither party has a right to a jury trial, except as to such issues as may be framed and sent to

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