Appeal from Special Term, Kings County.
Action by Bird S. Coler against the Brooklyn Daily Eagle. From an order denying its motion for a special jury, defendant appeals. Reversed, and motion granted.
William N. Dykman, for appellant.
Martin Conboy, for respondent.
Argued before HIRSCHBERG, P. J., and JENKS, RICH, and MILLER, JJ.
The action is for the publication by the defendant of an article charging the plaintiff, the borough president of the borough of Brooklyn, with being interested in street paving contracts in violation of section 1533 of the charter. The complaint demands damages in the sum of $100,000.
[117 N.Y.S. 274] The respondent raised on oral argument for the first time the point that chapter 564, p. 1348, of the Laws of 1902, is unconstitutional for offending article 3, § 18, of the state Constitution, which provides that:
" The Legislature shall not pass a private or local bill in any of the following cases: *** Selecting, drawing, summoning or impaneling grand or petit jurors."
It must be conceded that said statute is a local act, and that it does provide for selecting and drawing petit jurors. The jury law, applicable to Kings county, is a special act. Chapter 322, p. 517, of the Laws of 1858; chapter 10, tit. 4, art. 2, § § 1126-1162, of the Code of Civil Procedure. The statute in question does not purport to be an amendment of that statute, and it is unnecessary now to inquire whether it may be sustained as being in effect an amendment of an existing act (see People v. Petrea, 92 N.Y. 128), for the reason that there is a general act, containing similar provisions respecting the drawing of special juries, which is applicable to Kings county, if the particular provision of the statute in question relating to that subject be deemed to be invalid. In so far as the act of 1902 provides for the appointment of a commissioner of jurors for Kings county, it does not offend the constitutional provision in question. People v. Petrea, supra.The general act above referred to is chapter 602, p. 1462, of the Laws of 1901, as amended by chapter 458, p. 1147, of the Laws of 1904. Said chapter 602, p. 1462, of the Laws of 1901 violated section 2 of article 10 of the Constitution, in that it provided for the appointment of a county officer by state officers ( Matter of Brenner, 170 N.Y. 185, 63 N.E. 133), and it was to meet that decision that the statute was amended by said chapter 458, p. 1147, of the Laws of 1904. That statute is applicable to counties having a population of 1,000,000 or more according to the last federal census, and hence does not offend the constitutional provision in question for being a local law. People v. Dunn, 157 N.Y. 528, 52 N.E. 572,43 L.R.A. 247.It follows, therefore, that there is a valid statute, applicable to the county of Kings, which provides for the drawing of special jurors for the trial of an issue of fact raised in any civil or criminal action.
So far as pertinent to the question involved on this appeal, the statute provides:
" Where, upon such application, it appears to the court that by reason of the importance or intricacy of the case, a special jury is required, or that the subject-matter of the indictment or the issue to be tried has been so widely commented upon that the court is satisfied that an ordinary jury cannot without delay and difficulty be obtained to try such issue, or that for any other reason the due, efficient and impartial administration of justice in the particular case would be advanced by the trial of such an issue by a special jury, the court to which the motion is made may make an order directing that such trial be had by a special jury, and such trial shall be had accordingly."
It will be observed that the statute specifies in the disjunctive different reasons for granting the application. Eliminating all but the one deemed to be particularly applicable to this case, the statute would read as follows:
" Where upon such application, it appears to the court that by reason of the importance of the case, a special jury is required, the court to which the motion [117 N.Y.S. 275] is made may make an order, directing that such trial be had by a special jury, and such trial shall be had accordingly."
The learned justice before whom the motion was made was of the opinion that the case was important, but denied the motion upon grounds not necessary to comment upon, further than to say that they ...