
    George W. Stedman, Assignee, Appl’t, v. John Batchelor, Sheriff, Resp’t.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed July, 1888.)
    
    1. Jury — Objection to qualification of juror, must be taken by challenge—Code Civ. Pro., § 1180.
    Under the provisions of Code Civ. Pro., § 1180, an objection to the qualifications of a juror is available only upon a challenge.
    2. Same — Waiver of objection to qualification of juror—What amounts to.
    
      Held, That although at the time of empanelling a jury, a ground for challenging a juror existed, the party in whose favor the challenge might have been made available, waived his right to insist upon it by his omission to take it at the'trial. ,
    3. Error — Immaterial error must be disregarded by court—Code Civ. Pro., § 723.
    
      Held, That under tLe provisions of Code Civ. Pro., § 723, the court must disregard an error or defect in the pleadings or other proceedings, which does not affect the substantial rights of the adverse party.
    Appeal from an order denying a motion to set aside a verdict heard upon affidavits. The trial was had of an issue of fact at Oneida circuit, and a verdict was had for the defendant.
    Mr. Justice Williams, in an opinion, folio 141 to 163, very fully and fairly states the facts involved in the motion.
    
      Willard Rinhle, for appl’t; Sayles, Searle & Sayles, for resp’t.
   Hardin, P. J.

We think the opinion of Mr. Justice Williams, delivered upon denying the motion, fairly states tne facts involved in the motion, and accurately quotes the law applicable to the same.

In chapter 416 of the Laws of 1877, page 463, section 1180 •of the Code of Civil Procedure was amended, by inserting at the commencement thereof, this sentence: “An objection to the qualifications of a juror is available only upon a challenge.” It may be conceded that a good ground for a challenge existed at the time the jury was empanelled, but the party in whose favor the challenge might have been made available, waived his right to insist upon the challenge by his omission at the circuit to take the same.

In Bennett v. Matthews, 40 How. Pr., 428, it was held that a verdict “ will not be set aside as irregular, because one of the jurors was aii alien, an unnatural citizen, where the objection was not raised, and proper challenge made when the jury was drawn. In such case, the parties are . concluded,'although the fact forming the objection may not have come to their knowledge until after the trial.”

In Clark v. Van Vrancken, 20 Barb., 278, it was held “An omission to challenge is a waiver of all objection to a juror, in like manner as an omission to plead a defense, is a waiver of the defense;” and‘it was also held, in that case, that a party could not “ raise the objection that some of the jurors who sat upon the trial were not competent as such, for want of the requisite property qualifications.”

In Salisbury v McClaskey, 26 Hun, 262, the rule was laid down “that while the relationship of a juror to a party is ground of challenge for principal cause, yet if the objection is not taken when the jury is empanelled, the presence of the disqualified juror is not ground for a new trial, although the disqualification was not known to the defeated party, unless it appears he was actually prejudiced by it.” Woodward v. Dean, 113 Mass., 297; Rollins v. Ames, 9 Am. Dec., 79.

A similar doctrine was laid down in Cole v. Van Keuren (51 How., 451), and it was also said in that case, viz. : “The parties having accepted the twelve men as jurors, and thus Waived any objection to the verdict founded on the incompetency of the jury, and, as the verdict of the eleven jurors is valid, the finding should not be set aside on that ground, although such relationship was then unknown to either party.”

Hathaway v. Helmer (25 Barb., 29), does not aid the appellant, as in that case a challenge was made to the juror and overruled at the trial.

In Paulitsch v. N. Y. C. and H. R. R. R. Co. (19 Week. Dig., 73), it was said that a motion of this character should be made upon affidavits, or upon a case settled or both, and that the party in that case was not entitled to raise upon appeal an objection to a juror which was known to him at the time of the empanelling of the jury, as by taking the chances of the verdict of the jury he had waived the objection. That case, therefore, does not aid the appellant.

In Hayes v. Thompson (15 Abb. N. S., 220), I had occasion to examine a question somewhat similar to the one now presented, and I there said, viz.: “ Great latitude is allowed at the circuit, in procuring a jury, for a party to determine what jurors, are qualified and indifferent between the parties (3 R. S. [5th ed.], 718). Parties who do not avail of that latitude, and the rules established to secure as jurors persons who are strictly qualified, in the absence of proof that injustice has been done, should be held to waive objections or causes for challenge which might have been ascertained with diligence (6 Wend., 388; 17 Johns., 133; 7 Cow., 478; 1 Seld., 531). No such injustice is shown in this case, and the motion to set aside the verdict is denied, with ten dollars costs.”

The order Which I made at the time of delivering that opinion was affirmed by the fourth department, general term, January, 1874.

In the case in hand it appears that Batchelor, the sheriff, was fully idemnified against all liability by reason of seizing the goods in question, and, apparently, he had no-personal interest in the event of the issue tried at the-circuit.

The affidavits used upon the motion do not disclose any misconduct in the jury box of the juror Brooks, and nothing appears to show that any injustice was suffered by the plaintiff in consequence of the sitting of Brooks as a juror.

Section 723 of the Code of Civil Procedure declares, viz.: The court must disregard an error or defect in the pleadings or other proceedings which does not affect the substantial rights of the adverse party.”

We think the special term properly denied the motion.

,Order affirmed, with ten dollars costs and disbursements..

Follett and Martin, JJ., concur.  