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obligations of the district than they would if the statute had not been enacted, as the only persons interested in the determination of that question are the taxpayers and creditors of the plaintiff school district. Board of Education v. Board of Education, (1902) 76 App. Div. 355, 78 N. Y. S. 522, affirmed (1904) 179 N. Y. 556, 71 N. E. 1128.

Liquor tax certificate. As a liquor tax certificate is a vested property right the provisions of the Laws of 1905, chapter 697, in so far as they direct the special deputy commissioner of excise to revoke a liquor tax certificate issued before the passage of said act to a person intending to carry on traffic in liquor in connection with a hotel, without notice to the holder thereof and without giving him an opportunity to be heard, are in violation of this section. People v. Flynn, 110 App. Div. 279, 96 N. Y. S. 655, affirmed (1906) 184 N. Y. 579, 77 N. E. 1194.

8 2. Trial by jury.

The trial by jury in all cases in which it has been heretofore used shall remain inviolate forever; but a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law.

Const. 1777, Art. XLI; amended, Const. 1821, Art. VII, § 9; amended, Const. 1846, Art. I, § 2.

1. In general, 54.

II. Extent of right to jury trial, 57.

1. Generally, 57.

2. Equitable action, 60.

III. Waiver, 62.

I. IN GENERAL

Relation to article 1, section 6.- Article 1, section 6, does not limit the scope of this section, no power being impliedly conferred on the legislature to regulate the trial of misdemeanors by the provision therein that no person shall be held to answer an infamous crime except upon indictment. Hubbard, J., Wynehamer v. People, (1856) 13 N. Y. 378.

Per

Article 1, section 7.- The provisions of this section in no wise affect section 7, article 1, and do not require that the jury there mentioned conform absolutely to the one here secured. Cruger v. Hudson River R. Co., (1854) 12 N. Y. 190. See also Menges v. Albany, (1874) 56 N. Y. 374, wherein the question was raised but not decided.

Article 6, section 23.- The right to jury trial here prescribed does not extend to those cases of which courts of Special Sessions have jurisdiction under article 6, section 23. People v. Kaminsky, (1913) 208 N. Y. 389, 102 N. E. 515; People v. Craig, (1909) 195 N. Y. 190, 88 N. E. 38; People v. Dutcher, (1880) 83 N. Y. 240; People v. Special Sessions, (1878) 74 N. Y. 406; People v. Hunt, (1913) 157 App. Div. 848, 143 N. Y. S. 233; People v. Davis, (1911) 143 App. Div. 579, 127 N. Y. S. 1072; Devine v. People, (1880) 20 Hun 98; People v. Webb, (1878) 16 Hun 42. See also People v. Scherno, (1910) 140 App. Div. 95, 125 N. Y. S. 918. Thus, the Act of 1879, chapter 390, giving to the courts of Special Sessions, except in New York and Albany, exclusive jurisdiction in the first instance to hear and determine charges for petit larceny not charged as a second offense, is

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constitutional even though causes in the courts of Special Sessions may not be tried by a common-law jury. People v. Dutcher, (1880) 83 N. Y. 240. Meaning of jury.- The trial by jury to which this section has reference is a trial by a common-law jury of twelve men. People v. Cosmo, (1912) 205 N. Y. 91, 98 N. E. 408, 39 L. R. A. (N. S.) 967; People v. Dunn, (1899) 157 N. Y. 528, 52 N. E. 572, 43 L. R. A. 247, affirming 31 App. Div. 139, 52 N. Y. S. 968; Colon v. Lisk, (1897) 153 N. Y. 188, 47 N. E. 302, 60 A. S. R. 609; People v. Dutcher, (1880) 83 N. Y. 240; People v. Special Sessions, (1878) 74 N. Y. 406; Stokes v. People, (1873) 53 N. Y. 164, 13 Am. Rep. 492; Wynehamer v. People, (1856) 13 N. Y. 378; People v. Toledo, (1912) 150 App. Div. 403, 135 N. Y. S. 49; Devine v. People, (1880) 20 Hun 98. And, since impartiality was a fundamental characteristic of a common-law jury, the trial must be by unprejudiced jurors. "Any act of the legislature providing for the trial otherwise than by a common-law jury, composed of twelve men, would be unconstitutional and void, and any act requiring or authorizing such trial by a jury partial and biased against either party, would be a violation of one of the essential elements of the jury referred to in and secured by the constitution." Stokes v. People, (1873) 53 N. Y. 164, 13 Am. Rep. 492.

De facto jury. A trial before a body summoned and sworn as, and having the essential character of, a jury is not nullified by the fact that the statute under which the body was drawn is invalid because of some formal violation of the constitution. People v. Ebelt, (1905) 180 N. Y. 470, 73 N. E. 235. With respect to a trial conducted before a jury drawn under an act assumed to be violative of article 3, section 18, the court in that case held that since the jurors were taken from the body of the county and possessed the same qualifications in substance as those provided for by the Code of Civil Procedure, and each was separately examined by each side, and each side expressed satisfaction with each juror before he was sworn to try the case, it was not apparent how the defendant could have been prejudiced in respect to the drawing and return to the jurors and no right guaranteed to him by the constitution was thereby invaded.

Selection of jury. The mode of procuring and impaneling the jury is properly a subject of legislative regulation; and so long as the legislature provides for trials by common-law juries it may prescribe such methods as it may deem expedient for drawing jurors. People v. Cosmo, (1912) 205 N. Y. 91, 98 N. E. 408, 39 L. R. A. (N. S.) 967; People v. Meyer, (1900) 162 N. Y. 357, 56 N. E. 758; People v. Dunn, (1899) 157 N. Y. 528, 52 N. E. 572, 43 L. R. A. 247, affirming 31 App. Div. 139, 52 N. Y. S. 968; Stokes v. People, (1873) 53 N. Y. 164, 13 Am. Rep. 492; Walter v. People, (1865) 32 N. Y. 147, affirming 6 Park. Crim. 15; Weston v. People, (1875) 6 Hun 140. Thus, a statute (ch. 332, Laws of 1858) giving the state five peremptory challenges on the trial of any offense punishable by death or by imprisonment for ten years or over is valid, the legislature being entirely competent to prescribe the number of challenges to be allowed in any action. Walter v. People, (1865) 32 N. Y. 147, affirming 6 Park. Crim. 15. Similarly, chapter 427, Laws of 1873, dispensing with the method of deciding challenges for favor by triers and authorizing the court to act on and dispose of such challenges without triers is constitutional. Weston v. People, (1875) 6 Hun 140. And the court has upheld chapter 475, Laws of 1872, which specifies that the previous formation or expression of an opinion with reference to any criminal action shall not be a sufficient ground of challenge for principal cause to any person who is otherwise qualified to serve as a juror and who shall establish under oath to the satisfaction of the court that despite his opinion he is qualified to render an impartial verdict. Stokes v. People, (1873) 53 N. Y. 164, 13 Am. Rep. 492. The provision in chapter 378, Laws of 1896, for a special jury in certain criminal cases and for a particular mode of securing and procuring the jurors thereof is valid within this section

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People v. Dunn, (1899) 157 N. Y. 528, 52 N. E. 572, 43 L. R. A. 247, affirming 31 App. Div. 139, 52 N. Y. S. 968; People v. Meyer, (1900) 162 N. Y. 357, 56 N. E. 758. Nor does an act (ch. 3, Code Crim. Pro.) requiring that objections to the qualifications of a juror be taken before he is sworn deny in any manner the jury trial here secured People v. Cosmo, (1912) 205 N. Y. 91, 98 N. E. 408, 39 L. R. A. (N. S.) 967.

Retention of common-law forms.- While preserving the right of trial by a common-law jury, this section contains no language suggestive of a purpose to retain ancient common-law forms of procedure, and changes therein may be made at the discretion of the legislature. Middleton v. Whitridge, (1915) 213 N. Y. 499, 108 N. E. 192; Stephens v. People, (1859) 19 N. Y. 549. See also Smith v. Western Pac. R. Co., (1911) 203 N. Y. 499, 96 N. E. 1106, Ann. Cas. 1913B 264, 40 L. R. A. (N. S.) 137, affirming 144 App. Div. 180, 128 N. Y. S. 966; Peterson v. Ocean Electric R. Co., 161 App. Div. 720, 146 N. Y. S. 604.

Dismissal of complaint or direction of verdict by appellate court.— Just as it is proper for the trial court to dismiss a complaint or to direct a verdict, so, though findings of fact by the jury may not be examined, it is constitutional for the Appellate Division, under section 1317 of the Code, finally to dispose of a case as it should have been adjudged in the first instance, by reviewing the action of the trial court in dismissing a complaint or directing a verdict; and this may be done in cases wherein jury trial had formerly been used within the meaning of this section. Middleton v. Whitridge, (1915) 213 N. Y. 499, 108 N. E. 192; Peterson v. Ocean Electric R. Co., 161 App. Div. 720, 146 N. Y. S. 604.

Separate trial of issue.— Section 973 (Code of Civil Procedure), authorizing a court in its discretion to direct the separate trial by jury of one or more issues which may be decisive of a case prior to the trial of other issues therein, is valid. Smith v. Western Pas. R. Co., (1911) 203 N. Y. 499, 96 N. E. 1106, Ann. Cas. 1913B 264, 40 L. R. A. (N. S.) 137, affirming 144 App. Div. 180, 128 N. Y. S. 966. In that case the court said: "Even if we assume, as I think we should, that this section of the code permits separate trials of separate issues at different times, before different juries, it seems very clear that it does not destroy or impair the substantial right of litigant to have his case tried before a proper jury, but only prescribes the method in which this may be done. Every issue is submitted to the verdict of a jury. This is the substance of the right. . . . The constitution does not provide, and there should not be interpolated into it a provision, that all of the issues, even though completely separate and distinct, must be tried at one and the same time. No amount of analysis will disclose any such protection or benefit to a litigant in having all of the issues submitted to a single jury as will render such a right one of the essential ones secured by the constitution. On the contrary, it is at once apparent that the convenience of litigants may be much promoted by a prior trial of various jurisdictional and preliminary issues, and it is to be presumed that courts will so administer the provision in question as to make it remedial and beneficial rather than burdensome."

Exclusion of jury during discussion of legal question.— The exclusion of a jury from the courtroom during an argument as to the admissibility of evidence is no infraction of a defendant's right to trial by jury, the admissibility of evidence being purely a question of law for the judge. People v. Becker, (1915) 215 N. Y. 126, 109 N. E. 127.

Presumptive evidence.— The legislature is competent to declare a certain fact prima facie evidence of another fact to be established. This may be done without in any manner impairing the right of jury trial. “The general power of the legislature to prescribe rules of evidence and methods of proof is undoubted. While the power has its constitutional limitations, it is not easy to define precisely what they are. A law which would practically shut out the evidence of a party and thus deny him the opportunity for a trial

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would substantially deprive him of due process of law. It would not be possible to uphold a law which made an act prima facie evidence of crime over which the party charged had no control and with which he had no connection, or which made that prima facie evidence of crime which had no relation to a criminal act and no tendency whatever by itself to prove a criminal act. But so long as the legislature, in prescribing rules of evidence, in either civil or criminal cases, leaves a party a fair opportunity to make his defense and to submit all the facts to the jury to be weighed by them, upon evidence legitimately bearing upon them, it is difficult to perceive how its acts can be assailed upon constitutional grounds." Board of Excise Com'rs v. Merchant, (1886) 103 N. Y. 143, 8 N. E. 484, 57 Am. Rep. 705. Compare People v. Lyon, 27 Hun 180. See Art. 1, § 6. Judicial interference with verdict. The spirit of this guaranty demands that the ultimate decision of matters properly within its jurisdiction reside with the jury. Accordingly, though a court may set aside a verdict contrary to the weight of evidence, it cannot by repeatedly setting aside verdicts retain a case until a jury is found that will reach a conclusion consonant with its views. On the contrary, it must give effect to the verdict rendered if in view of the number of trials allowed the jury may reasonably be presumed to have acted with deliberation and without prejudice. Ridgely v. Taylor, 126 App. Div. 303, 110 N. Y. S. 665, affirmed (1909) 196 N. Y. 556, 90 N. E. 1165; Lacs v. James Everard's Breweries, 107 App. Div. 250, 95 N. Y. S. 25; McCann v. New York, etc., R. Co., 73 App. Div. 305, 76 N. Y. S. 684; Perlman v. Brooklyn Heights R. Co., 78 Misc. 168, 137 N. Y. S. 917. Compare Meinrenken v. New York Cent., etc., R. Co., 103 App. Div. 319, 92 N. Y. S. 1015.

Test oath. That portion of the "Act to provide for a convention to revise and amend the Constitution," passed March 29, 1867 (ch. 194), which provided that, at the election of delegates, no person shall vote who will not, if duly challenged, take and subscribe the following oath: "I do solemnly swear (or affirm), that I have never voluntarily borne arms against the United States since I have been a citizen thereof; that I have voluntarily given no aid, countenance, counsel or encouragement to persons engaged in armed hostility thereto; that I have neither sought nor accepted nor attempted to exercise, the functions of any office whatever, under any authority, or pretended authority, in hostility to the United States; that I have not yielded a voluntary support to any pretended government, authority, power or Constitution within the United States, hostile or inimical thereto, and did not willfully desert from the military or naval service of the United States, or leave this State, to avoid the draft during the late rebellion," is unconstitutional and void hereunder. Green v. Shumway, (1868) 39 N. Y

418.

Legislative extension of right to jury trial. While this section preserves the right to trial by jury in those cases in which it had formerly existed, it does not prohibit the legislature from extending that right to all other cases. Phillips v. Gorham, (1858) 17 N. Y. 270.

II. EXTENT OF RIGHT TO JURY TRIAL
1. Generally.

Nonjudicial proceedings.— Jury trial can be demanded as a matter of right under this section only in proceedings that are judicial in nature. Thus, its provisions cannot be invoked in condemnation proceedings to require the determination by jury of the necessity of any appropriation or of the damages to be allowed therefor. People v. Smith, (1860) 21 N. Y. 595; Livingston v. New York, (1831) 8 Wend. 85. Nor do these provisions extend to classes of cases wherein the law has interposed means of preventive justice:

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and in view of that consideration a statute (ch. 7 of the Act of Jan. 23, 1833) authorizing a magistrate summarily to convict parents who have abandoned their families of disorderly conduct and to require of them recognizances for their future good behavior has been sustained. Duffy v. People, (1841) 1 Hill 355, reversed on other ground 6 Hill 75. Since, too, the liquor traffic is essentially a subject of legislative regulation, the Liquor Tax Law (ch. 112, Laws of 1896) providing for the summary revocation of liquor certificates is constitutional in this particular, though failing to secure to holders of the certificates the right to jury trial. Matter of Lyman, (1899) 46 App. Div. 387, 61 N. Y. S. 884, affirmed (1900) 163 N. Y. 552, 57 N. E. 1115; Matter of Livingston, (1897) 24 App. Div. 51, 48 N. Y. S. 989.

New cases.— This section is generic, not limiting the right of jury trial to the mere instances "in which it has heretofore been used," but extending that right to such new and like cases as afterward arise. Wynehamer v. People, (1856) 13 N. Y. 378, reversing 20 Barb. 168; Colon v. Lisk, (1897) 153 N. Y. 188, 47 N. E. 302, 60 A. S. R. 609; People v. Baird, (1877) 11 Hun 289.

Significance of "heretofore." The word "heretofore" must be taken as meaning "before 1846." Moot v. Moot, (1915) 214 N. Y. 204, 108 N. E. 424, affirming 164 App. Div. 525, 149 N. Y. S. 901; Wynehamer v. People, (1856) 13 N. Y. 378. Compare People v. Cosmo, (1912) 205 N. Y. 91, 98 N. E. 408, 39 L. R. A. (N. S.) 967; Duffy v. People, (1843) 6 Hill 75. The measure of the right to trial by jury here preserved is, therefore, that right as it existed immediately before the adoption of the constitution of 1846: and the practice at some time anterior to that date and contrary to the custom then prevailing is not potent to limit the cases to which the right extends. Wynehamer v. People, (1856) 13 N. Y. 378.

Violation of Sanitary Code.- Since cases involving questions of the public health had not ordinarily been determined by jury prior to 1846, the legislature may prescribe summary measure for the enforcement of sanitary regulations and for the punishment of violators thereof. Heister v. Metropolitan Board of Health, (1868) 37 N. Y. 661; Matter of Smith, (1895) 84 Hun 465, 32 N. Y. S. 317, reversed on other grounds (1895) 146 N. Y. 68, 40 N. E. 497, 48 A. S. R. 769, 28 L. R. A. 820.

Claim against town for tax wrongfully exacted.- In view of the long legalized practice for the board of supervisors of a county to audit charges against towns in the county and to levy and assess taxes for the payment thereof, the court has held valid chapter 119, Laws of 1873, authorizing such a board to decide a claim made by one whose property has been taxed by two towns for the tax wrongfully exacted. People v. Essex County, (1877) 70 N. Y. 228.

Proceedings for the enforcement of forfeited recognizances are not cases in which trials by jury had been formerly used within the meaning of this section. People v. Quigg, (1874) 59 N. Y. 83.

Vagrancy. The right to jury trial does not extend to charges of vagrancy. Duffy v. People, (1843) 6 Hill 75, reversing 1 Hill 355.

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Courts-martial.— The right of jury trial is not preserved in trials by courtsmartial. Indeed, such a mode of trial would be wholly incompatible with the object, end and organization of courts martial.” People v. Daniell, (1871) 6 Lans. 44, affirmed (1872) 50 N. Y. 274.

An action to recover lands has always been triable by jury and the legis lature would not seem competent to deny that mode of trial in such action. Bryan v. McGurk, (1911) 200 N. Y. 332, 93 N. E. 989, affirming 134 App. Div. 93, 118 N. Y. S. 912; Prospect Park, etc., R. Co. v. Morey, (1913) 155 App. Div. 347, 140 N. Y. S. 380; Hamlin v. People, (1913) 155 App. Div. 680, 140 N. Y. S. 643.

Existence of contract.- Where a cause of action is upon contract for a definite sum of money, or for damages ex contractu, and the existence of the

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