a jury. Kenney v. Apgar (1883) 93 N. Y. 539, 550; Schillinger FireProof Cement & Asphalt Co. v. Arnott (1897) 152 N. Y. 584, 590, 46 N. E. 956; Smith v. Fleischman (1897) 23 App. Div. 355, 48 N. Y. Supp. 234.

A proceeding to enforce an attorney's lien under § 66 of the Code of Civil Procedure is of an equitable character, analogous in some respects to the foreclosure of a mechanic's lien, and the parties are not entitled to a trial of the issues by a jury. Re King (1901) 168 N. Y. 53, 60 N. E. 1054; Fenwick v. Mitchell (1901) 34 Misc. 617, 70 N. Y. Supp. 667.

Misdemeanors.-The act of 1870, chap. 47, which conferred on courts of special sessions in Monroe county exclusive jurisdiction of petit larceny not charged as a second offense, did not violate this provision of the Constitution. People ex rel. Stetzer v. Rawson (1872) 61 Barb. 619. The same rule was declared as to the act of 1879, chap. 390, conferring on courts of special sessions exclusive jurisdiction in certain cases. People ex rel. Comaford v. Dutcher (1880) 83 N. Y. 240.

After 1830 misdemeanors for the violation of the excise law were not triable by courts of special sessions, but by courts of general sessions or of oyer and terminer, which were courts proceeding according to the course of the common law. Under statutes in force at the adoption of the first Constitution, particularly the act of 1744, relating to the punishment of offenses below the grade of grand larceny, the defendant was not entitled to jury trial as a matter of right. Under the state government the right of trial by jury was bestowed in the case of several minor offenses. The new Constitution (1846), speaking from the time it took effect, protected this right as fully as if it had existed at the adoption of the first Constitution. The provision in the prohibitory liquor law of 1855, chap. 231, authorizing the trial of offenders by jury of six men, was therefore held to be unconstitutional. Wynehamer v. People (1856) 13 N. Y. 378, 426. Section 26 of article 6, added in 1869, modified the jury provision so far as it related to courts of special sessions, by authorizing the legislature to regulate the jurisdiction of those courts.

Under this provision a statute which deprives a person charged with a misdemeanor of the right to a trial by a jury cannot be held unconstitutional. People v. Levy (1898) 24 Misc. 469, 53 N. Y. Supp. 643.

A person charged with a misdemeanor is not entitled to a trial by VOL. IV. CONST. HIST.-4.

jury in the city of New York. People v. Stein (1903) 80 App. Div. 357, 80 N. Y. Supp. 847.

New offense.-The true rule undoubtedly is that when the legislature creates a new offense it is placed on the same footing as other previous offenses of the same grade, and is equally governed by the provision of the Constitution. People v. Kennedy (1855) 2 Park. Crim. Rep. 312, Parker, J.

New York charter.—Under the act of 1857, chap. 344, New York district courts had no power to impanel a jury of twelve men. The district courts were statutory courts, deriving all their powers and jurisdiction from the statute, which fixed the number of jurors at six. The purpose of the constitutional provision preserving the right of trial by jury was to secure the continuance of the right of trial by a common law jury of twelve men in cases where or in which a trial by a jury of twelve was used when the Constitution was adopted. People ex rel. Metropolitan Bd. of Health v. Lane (1869) 55 Barb. 168.

The offenses specified in subds. 1 and 2 of § 1458 of the New York consolidation act of 1882, chap. 410, are not misdemeanors, but petty offenses, and subject to summary conviction by city magistrates. People ex rel. Frank v. Davis (1903) 80 App. Div. 448,

Nuisance. An action to recover damages for a nuisance, or for a statutory penalty for creating or continuing a nuisance, is triable by jury. Fire Department v. Harrison (1859) 2 Hilt. 455.

An action to abate a nuisance and for damages was triable by jury under the common law before the adoption of the Constitution. The right is therefore preserved by that instrument. Hudson v. Caryl (1871) 44 N. Y. 553; McNulty v. Mt. Morris Electric Light Co. (1900) 56 App. Div. 9, 67 N. Y. Supp. 395; Libmann v. Manhattan R. Co. (1891) 59 Hun, 428, 13 N. Y. Supp. 378, where it was also held that if the plaintiff joined a cause of action for equitable relief with one for damages in maintaining a nuisance, the defendant might compel him to elect between the causes of action, for the reason that, in an action based on a nuisance, the defendant was entitled to a trial by jury.

Penalties. The act of 1896, chap. 383, authorizing a summary and exclusive proceeding for the seizure, forfeiture, and sale of any boat or vessel used by any person in interfering with oysters or other shellfish belonging to another, was held invalid, because it deprived the owner of the vessel seized of the right of trial by jury. The forfeiture of property used in violation of the statute was, in effect, a penalty, and actions to enforce forfeitures or penalties had usually

been tried by a jury. This statute made no provision for such a trial. Colon v. Lisk (1897) 153 N. Y. 188, 60 Am. St. Rep. 609, 47

N. E. 302.

Pleading.-A defense cannot be stricken out as sham, if the defendant is entitled to a jury trial thereon. Belsena Coal Min. Co. v. Liberty Dredging Co. (1899) 27 Misc. 191, 57 N. Y. Supp. 739. Procedure. The subject of preparing jury lists and drawing and impaneling jurors is within the discretion of the legislature. People v. Dunn (1899) 157 N. Y. 528, 43 L. R. A. 247, 52 N. E. 572;; People v. Meyer (1900) 162 N. Y. 357, 56 N. E. 758.

Public health.-Prior to the Constitution of 1846 the right to a trial by jury had not been granted in cases relating to public health,. where the public interests required action to be taken. Early legislation shows that the "absolute control over persons and property, so far as the public health was concerned, was vested in boards or officers, who exercised a summary jurisdiction over the subject, and who were not bound to wait the slow course of the law, and that juries had never been used in this class of cases." This power was frequently vested in municipal officers. The act of 1866, chap. 74, creating the Metropolitan Sanitary District, and authorizing summary proceedings for the purpose of preserving public health, did not deprive a person charged with a violation of the statute of the right of trial by jury. Such right did not exist at the adoption of the Constitution. Metropolitan Bd. of Health v. Heister (1868) 37 N. Y. 661; Re Smith (1895) 84 Hun, 465, 32 N. Y. Supp. 317, 146 N. Y. 68, 28 L. R. A. 820, 40 N. E. 497, construing the public health law of 1893, chap. 661, § 24, relating to infectious and contagious diseases and the general effect of quarantine laws.

Recognizance. The act of 1844, chap. 315, which, among other things, required a forfeited recognizance to be docketed, and gave it the force and effect of a judgment, making it a lien on land and enforceable by execution, did not violate the provision preserving the right of trial by jury. The recognizance was an acknowledgment of record that a debt was due, and was, in its legal effect, a confession of judgment. No action upon it was necessary, for there was nothing to be tried. Gildersleeve v. People (1850) 10 Barb. 35; People v. Quigg (1874) 59 N. Y. 83.

Referee. An appointment of a referee to try an action is not a violation of this provision. Trial by referees was well known during the colonial period, and this exception to the right of trial by jury was a part of the legal system which became the heritage of the

state on the adoption of the first Constitution. Lee v. Tillotson (1840) 24 Wend. 337, 35 Am. Dec. 624.

Notwithstanding the provision guaranteeing trial by jury, the court may direct a reference in an action involving the examination of a long account. Such references were often directed prior to the adoption of the Constitution. Van Marter v. Hotchkiss (1864) 1 Keyes, 585; Shepard v. Eddy (1888) 15 N. Y. Civ. Proc. Rep. 403, 18 N. Y. S. R. 839, 2 N. Y. Supp. 534. The same subject is considered in Doyle v. Metropolitan Elev. R. Co. (1893) 136 N. Y. 505, 32 N. E. 1008.

Special proceedings.-The act of 1797, chap. 51, providing for the appointment of commissioners to settle disputes as to lands in Onondaga county, and authorizing them to take evidence and report thereon, did not create a court. The commissioners acted as arbitrators, and the act did not violate the constitutional provision preserving the right of trial by jury. Barker v. Jackson (1826) I Paine, 559, Fed. Cas. No. 989.

Special sessions.-The act of 1801, chap. 70, authorizing the trial by courts of special sessions, without a jury, of cases of petit larceny and other minor offenses, did not violate the provision of the section (41) of the Constitution of 1777, preserving the right of trial by jury as theretofore used in the colony. The act of 1801 was a substantial re-enactment of the colonial act passed September 1, 1744, under which persons charged with petit larceny were to be tried by a court of special sessions without a jury. Jackson ex dem. Wood v. Wood (1824) 2 Cow. 819, note. The provisions of the act of 1801 were substantially continued in the Revised Laws of 1813, which, by chap. 104, § 4, authorized summary convictions by courts of special sessions without a jury. This was also held constitutional in Murphy v. People (1824) 2 Cow. 815.

The provision preserving trial by jury "in all cases in which it has heretofore been used" means a common law jury of twelve men, and does not include petit offenses which, before the Constitution, were triable by a court of special sessions. People ex rel. Murray v. Special Sessions Justices (1878) 74 N. Y. 406; People ex rel. Comaford v. Dutcher (1880) 83 N. Y. 240, 242, where the court considered the jury section in connection with § 26 of article 6, added in 1869, providing that "courts of special sessions shall have such jurisdiction of offenses of the grade of misdemeanor as may be provided by law," and said that prior to this amendment the statute conferring exclusive jurisdiction on these courts in cases of misdemeanor would have been a violation of the jury provision, because it

would have deprived a defendant of the right of trial by a jury of twelve men; that the amendment "was no doubt designed to invest the legislature with authority to confer upon courts of special sessions full and exclusive jurisdiction in this class of cases, which it was held not to possess under the decisions of the courts; and it must be regarded as a modification and a restriction of the limitation of power which was held to exist by virtue of § 2 of article I in respect to offenses of the character specified," and that the act of 1879, chap. 390, conferring exclusive jurisdiction on courts of special sessions in cases of petit larceny charged as a first offense was valid.

The jurisdiction of the recorder's court of Poughkeepsie was considered in People v. Iverson (1899) 46 App. Div. 301, 61 N. Y. Supp. 220, where it was held that a defendant charged with being a disorderly person under the charter could not constitutionally claim the right of trial by jury. People ex rel. Eckler v. Clark (1881) 23 Hun, 374, where it was held that the act of 1834, chap. 78, which authorized a person accused of disturbing a religious meeting to demand a trial by a jury of six, did not violate this constitutional provision.

Summary proceedings.-The jury provision does not apply to summary proceedings for the recovery of real property, and the statute authorizing a jury of six in such cases is constitutional. Roberts v. Cone (1870) 3 Alb. L. J. 151.

Sunday law. A person accused of Sabbath breaking is entitled to a jury trial. Re Erbe (1894) 13 Misc. 404, 35 N. Y. Supp. 102. Venue. A defendant in a civil action has no constitutional right to a trial by jury in a county where the cause of action accrued. People v. Rouse (1891) 39 N. Y. S. R. 656, 15 N. Y. Supp. 414.

Village ordinance.-A person charged with violating a village ordinance prohibiting obstructions in streets is not entitled to a trial by jury. People v. Van Houten (1895) 13 Misc. 603, 35 N. Y. Supp. 186.

Waiver.-A defendant who pleads guilty to a charge within the jurisdiction of the court cannot afterwards be heard to assert that the statute under which he is convicted is unconstitutional for the reason that it deprives him of the right to a trial by jury. Plato v. People (1857) 3 Park. Crim. Rep. 586.

The right of trial by jury may be deemed waived by the conduct or silence of the parties. Baird v. New York (1878) 74 N. Y. 382; Greason v. Keteltas (1858) 17 N. Y. 491; Barlow v. Scott (1861) 24 N. Y. 40; West Point Iron Co. v. Reymert (1871) 45 N. Y. 703;