
    Costigan v. Cuyler.
    
      Trial of Challenge to the Favor.—Exception.
    
    Where a challenge to the favor is tried before the judge, no exception lies to the rejection, as immaterial, of evidence in support of the challenge.
    Appeal from the general term of the Supreme Court, in the third district.
    ■ This was an action for libel. On the trial, a juror was challenged by the plaintiff to the favor; and it was agreed that the challenge should be tried by the judge. The plaintiff offered certain testimony in support of his challenge, which the judge rejected, as immaterial; and the plaintiff took an exception. After a verdict for the defendants, the exception was ordered to be heard, in the first instance, at the general term, where the ruling of the judge was sustained, and a new trial refused. The plaintiff, thereupon, took this appeal. v
    
      Tremain, for the appellant.
    
      Porter, for the respondents.
   Comstock, C. J.

The juror being challenged for favor, was asked, as a witness on the trial of that challenge, whether he was a member of the society of “ Know Nothings.’7 The question, considered by itself, of course, amounted to nothing. To show its pertinency, the plaintiff offered to prove the other facts mentioned in the bill of exceptions, to wit, that the *plaintiff was a Catholic and an Irishman; that the defendants were members of the same society of “ Know Nothings77 with the jur- or; and that the rules of that society inculcated hostility to all Irish Catholics. It had been agreed, that the challenge should be tried by the judge, without other triors. If triors had been appointed in the usual way, their decision in favor of the juror’s impartiality, if the evidence offered had been submitted to them, would have been final; this is admitted. If the judge himself, after receiving the same evidence, had passed upon it, in the same manner, his decision also would have been final. This is, in substance, precisely what was done; the judge assumed the facts to be as they were offered in evidence; he held they were immaterial, and rejected the offer; thus determining that those facts did not make out a case of favor which disqualified the juror. It manifestly was of no importance to the plaintiff, whether this determination should be made, after receiving the testimony, or, at the threshold, when it was offered. The insufficiency of the testimony to disqualify the juror, was the point adjudged. The plaintiff has no right to complain, that the judge refused to consume the time of his court, in hearing the proof of facts, which, as soon as proved, he would decide were of no avail.

It is quite manifest, from what took place at the trial, that the facts stated, offered in connection with the particular question objected to, constituted the plaintiff’s whole case upon the trial of the challenge. There is no room, therefore, for the argument, which has been pressed, that those facts were pertinent, and should have been received in connection with others that were not mentioned in the offer. The plaintiff asked a question, and on objection being made, he stated all the connected facts which he proposed to prove; the truth of the whole of them was assumed, and on that assumption, a decision was, in substance, made, that the juror was impartial. If this be the correct version of the case, and we think it is,, then it is conceded, that the determination cannot be reviewed. It becomes unnecessary, therefore, to consider whether the evidence offered had a tendency to make out. a case of partiality *in the juror, so that the judge ■. would.have been bound to receive and submit it-, to the triors, if a jury of triors had been sworn.

Judgment affirmed.

Clbrke, J., dissented. 
      
       Pr. See People v. Christie, 2 Park. 579, more fully reported in 2 Abb. 256; also People v. Horton, 13 Wend. 9.
     
      
       This case is not now law; the act of 1873, c. 437, provides that either party may except to the decision of the court upon a challenge of a juror, and that upon a writ.of error or eertiorarri, the court may review such decision, the same as other questions arising upon the trial. Under this statute, the appellate court must pass upon the facts de nova, from the evidence adduced before the court below. Greenfield v. People, 74 N. Y. 277; s. c. 13 Hun 242.
     