
    William J. Butler, Resp’t, v. The Glens Falls, Sandy Hill & Fort Edward Street Railroad Co., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed April 15, 1890.)
    
    1. Tbial—Juby.
    Although the relationship of the wife of a proposed juror to a stockholder of a corporation against which an action for negligence is brought ' does not, as matter of law, disqualify him from acting, yet where the record shows that the challenge was to the favor and not for principal •cause, and the court held the juror “ disqualified,” it must be taken that he was so held as a fact for actual bias, which decision this court will not review unless the evidence shows on its face that the decision was necessarily erroneous.
    3. Same.
    Unless this court can say in such a case that there was no evidence to support the decision of the trial court it must affirm it. It is a question addressed to the sound discretion of the trial court.
    Appeal from judgment of the supreme court, general term, third department, affirming judgment in favor of plaintiff, entered upon verdict of jury rendered at circuit and from order denying new trial.
    
      L. H Northup, for app’lt; T. F. Hamilton, for resp’t.
    
      
       Affirming 17 N. Y. State Rep., 565.
    
   Beckham, J.

We are fully satisfied that the plaintiff 'in this action made out a case for submission to the jury both upon the question of the alleged negligence of the defendant and his own freedom from any negligence which contributed to the injury. The very full and satisfactory opinion delivered at the general term upon these points, as well as upon the exceptions to the refusals to charge as requested, renders it unnecessary for us to say anything more upon them.

One question was argued here which does not appear to have been urged as ground for a new trial at the general term. The case states that a proposed juror was called, and that plaintiff interposed a challenge to the favor, and on such challenge the proposed juror was sworn and testified that he was related to one of the stockholders of the defendant; that is, as he explained, he understood that a Mr. Brayton was a stockholder therein, and that the wife of the witness was an own cousin of Mr. Brayton. The case contains the further statement that “ upon this evidence the court held the juror disqualified and he was discharged from the panel.” The defendant excepted to the decision and it is now claimed to have been error and that it is a ground for reversing the judgment. Two cases are cited by defendant’s counsel as sustaining his claim. They are Hildreth v. City of Troy, 101 N.Y., 234, and People v. McQuade, 110 id., 284; 18 N. Y. State Rep., 288. ITeither is an authority for the proposition here claimed.

In regard to the case first cited, it is plain that the challenge was one for principal cause, grounded upon the alleged interest which the proposed jurors had in the result of the action, they being residents of the city of Troy.

The trial court treated the challenge as well founded, and set aside each of such jurors as disqualified, not for bias in fact, but because as matter of law, upon the undisputed facts„none of them came up to the required legal standard for a competent juror. This court held that the proposed jurors were not disqualified, because there was a section in the charter of defendant providing that no person should be regarded as incompetent in such a case by reason of his being an inhabitant of the city. The judgment was, therefore, reversed. Although by comparatively recent amendments to the law the court is now the sole trier of all challenges, whether for principal cause or to the favor, yet the distinct and wholly different nature of the two grounds of challenge still exists. Greenfield v. People, 74 N. Y., 277.

If the challenge in the case before us had been one for principal cause, and it had been sustained on the facts now appearing, it would be apparent that the court erred in so holding, for there can he no doubt that the relationship of the wife of the proposed juror to a stockholder of defendant did not as matter of law disqualify him from acting as a juror. Whether an error made under such circumstances in the case of a single juror would necessarily call for a reversal of the judgment is another question not now before us.

The record here, however, shows that the challenge was to the favor, and not for principal cause, and of course where the court held the proposed juror “disqualified,” it must be taken that he was so held, not as a matter of law, but as a fact, for actual bias. In other words, the challenge raised an issue of fact instead of one of law, and the decision of the court was based upon the evidence given upon the challenge. Under the old practice the triers would have disposed of it, instead of the court. But as the court now takes the place of the triers, the decision of the court upon such an issue of fact may be excepted to and reviewed by the appellate court by virtue of the Code of Civil Procedure, § 1180. Under this section our power to review the decision of the court upon a question of fact depends upon the existence of an exception, and in accordance with the rule governing exceptions to the decision of questions of fact, this court will not review the decision of the trial court upon a challenge to the favor, except in the absence of any evidence to sustain it; or, in other words, unless the evidence shows on its face that the decision was necessarily erroneous.

The case of The People v. McQuade, supra, although a criminal case and decided under the provisions of the Code of Criminal Procedure, is to this same effect. It was there stated that the decision of the trial court on the question of indifference is not reviewable, except in the absence of any evidence to support it, when it becomes in such case error of law to which an exception lies. In the MeQuade case a proposed juror (Platt,) was rejected upon a challenge (whether to the favor or for principal cause is not clear) based upon the fact that he knew one of the counsel for defendant, and upon one occasion had advised with him upon some matter of business. This court held that neither challenge was sustained by the evidence, and that the juror should not have been rejected. The court, however, stated it was not prepared to say that such erroneous rejection was ground in itself for a reversal of the judgment.

The court in that case also reviewed the decisions of the trial court in overruling three challenges to the favor interposed on behalf of the defendant to three different jurors, and it held that they were legally incompetent to sit by reason of actual bias as disclosed on the face of their own testimony.

Unless we can say in the case before us that there was no evidence to support the decision of the trial court, we must affirm it The causes of favor, says Lord Coke, “ are infinite.” Where that which is alleged does not in judgment of law imply a disqualifying bias, it must be left to the conscience and discretion of the triers, upon hearing the evidence, to find the juror favorable or not favorable. The question for the triers is whether the juror is, as he assuredly should be, altogether indifferent, and if thev find he is not, it is their duty to reject him. People v. Bodine, 1 Denio, 281-805. The application,of this rule to each particular case where the partiality is not apparent must be left to the sound discretion of the triers. Id., 306.

Many cases are instanced, in the opinion of the learned judge in Bodine s case, supra, of what causes had been allowed as sustaining a challenge to the favor, and upon such a challenge the appeal to the trier seems to be regarded as one based peculiarly upon his sound discretion. While it may, perhaps, be true that we would have taken a different view of the evidence upon the question of fact as to bias than did the learned judge who tried the cause, yet we are not prepared to hold that there was absolutely no evidence upon which to entertain the challenge to the favor.

As is above stated, such a question is one addressed to the sound discretion of the trial court, and we are wholly indisposed to lightly disregard his finding in such case, where the challenge is sustained and the proposed juror rejected.

The causes operating upon the human mind to produce bias being infinite in their variety, and of a nature which it is impossible to strictly or accurately define or limit, we would be reluctant to overrule the decision of the trial court upon such an issue. We ought not to interfere with a ruling sustaining a challenge, unless the evidence be of such a nature that in no possible view could it fairly be regarded as constituting even plausible ground for the decision. This is not such a case. Although the evidence 'offered and received to sustain the challenge to the favor was very slight indeed, yet guided by the rules laid down for the review of the decisions of trial courts in such cases, we cannot say that an error of law was committed in rejecting the proposed juror.

These views lead to an affirmance of the judgment, with costs.

All concur.  