
    
      In re Klock.
    
      (Supreme Court, General Term, Fourth Department.
    
    October, 1888.)
    1. Jury—Competency op Jurors—Previous Opinion.
    A proposed juror, on an inquisition de lunático inquirmdo, who has talked about the matter of the contestant’s sanity with the petitioner for the inquisition, with whom he is on friendly terms, and, while he has taken but little interest in the matter, has formed some opinion on the question which would require evidence to remove, but which he thinks could be removed by evidence, and who states that he could and would make an impartial inquisition, is incompetent.
    2. Insanity—Evidence—Opinion op Ron-Expert.
    A-non-expert witness who, after detailing a conversation with the contestant, states that he is unable to say whether the impression made upon his mind thereby was that contestant was rational or irrational, should not be permitted to testify that it seemed to him that contestant’s mind was very weak. Following Holcomb v. Holcomb, 95 N. Y. 316.
    Appeal from Oneida county court.
    Simeon Block resided at Vernon, Oneida county, N. Y., and was 81 years old when his son, Henry Block, on the 17t'h day of November, 1887, petitioned the county court to appoint a committee for. him, and that a commission de lunático inquirendo issue. The commission was issued to one John F. Tuttle, who caused a jury to be summoned. Simeon Block ap-pea red by counsel and contested the allegations of the petition. -A juror — Neil Duress — was examined on his voir dire, and answered as follows: “Examined by Mr. Jenkins. I am acquainted with the respondent, Simeon Klock, and with his sons. I have talked with Henry Klock, the petitioner, about this case, and about the property. I have not taken much interest in the case. I have formed some little opinion. I do not know as I have expressed it. I have heard several stories about it, and have formed some ■opinion, so that it would require some evidence to remove it. I have talked with Henry Klock twice about it. I guess I have heard him speak of it more than twice. I think only three times in all. I have had no conversation with him since I was summoned as a juror. I was summoned several days ago. I am friendly with Henry Klock. I have formed an opinion without hearing the evidence, Henry Klock talked with me about subpoenaing me as a witness; he did not subpoena me. Examined by Mr. Carskaddan. I would try and make an impartial inquisition in this case on the evidence, and I think I could. I have formed no opinion in this case that could not be overcome by the evidence. Re-examined by Mr. Jenkins. I did say I had formed some little opinion, and that it would require some little evidence to overcome it. I have not heard Henry say anything about the property.” The juror was challenged by Simeon Klock, for cause, which being overruled, he was then challenged peremptorily, and this challenge was also overruled. Exception was also taken to the admission of the evidence of one Douglas, the substance of which is stated in the opinion. The inquisition resulted in a verdict of insanity, which, when the inquisition was returned to the county court, was confirmed, and a committee appointed for Klock, who appeals.
    Argued before Hardin, P. J., and Martin and Follett, JJ.
    
      Edwin 8. Butterfield, for appellant. C. Carskaddan, for respondent.
   Hardin, P. J.

Section 2330 of the Code of Civil Procedure provides for a precept to the sheriff, requiring him to notify not less than 12 nor more than 24 indifferent persons qualified to serve, and not exempt from serving, as trial jurors in the same court, to appear before the commissioner at a specified time and place within the county, to make inquiry as commanded by the commissioner. The sheriff must notify the jurors accordingly, and must return the precept, and the names of the persons notified, to the commissioner, at the time and place specified in the precept. The commissioners, or a majority of them, must determine a challenge made to a juror. In Tebout's Case, 9 Abb. Pr. 211, it was held that if a finding in such a proceeding as the one before us was induced “by any bias or opinion previously formed,” there should be a new trial. In Re Wager, 6 Paige, 11, the chancellor declared that it was the duty of the sheriff “to select and summon such jurors as he thought proper, and who were indifferent in relation to the matter; that the commissioners were only authorized to decide upon the validity of challenges to jurors so selected.” Following that ruling, it is said, in Barbour’s Chancery Practice, (Ed. 1843, vol. 2, p. 232:) “The commissioners are authorized to decide upon the validity of challenges to jurors.” The same rule is repeated in the edition of 1875, (volume 2, p. 233.) Section 1176 of the Code of Civil Procedure provides that “ upon the trial of an issue of fact, joined in a civil action in a court of record, or not of record, each party may peremptorily challenge not more than two of the persons drawn as jurors for the trial.” It is claimed, however, by the respondent, that the technical language of that section does not apply to the proceedings before us. However that may be, we are of the opinion that a contesting party, upon a hearing before a commissioner, should be allowed to challenge jurors in accordance with the practice prescribed for the guidance and government of courts in obtaining an impartial jury. We think the learned commissioner committed an error when he refused to hold that the juror was not “an indifferent person,” and in determining the challenges adversely to the appellant.

In a proceeding so important as the character of the one in which the quesfcion arises, which may result not only in committing the custody o£ the person, but the custody of the property, of the party proceeded against, to another, great care and caution should prevail; and a juror ought not to sit who confesses that he has formed an opinion, “and that it would require some little evidence to overcome it. ” Lord v. Brown, 5 Denio, 345; Greenfield v. People, 74 N. Y. 283. Chapter 427 of the Laws of 1873 provides that the determination in respect to challenges of jurors, both in civil and in criminal cases, may be reviewed. Chapter 475 of the Laws of 1872, in relation to challenges of jurors who had previously formed or expressed an opinion or had an impression in respect to the circumstances involved in a trial, only relates to criminal cases, and that statute could not be invoked to aid the ruling before us.

In Holcomb v. Holcomb, 95 N. Y. 316, the rule is laid down in respect to non-expert witnesses, and the extent given to which their examination may be made, and their opinion delivered; anditis said that where they have “testified to facts within their knowledge and observation,” they may characterize them as rational or irrational; that the testimony from such witnesses must .be limited to their conclusions from the facts testified to by them. The witness Douglas was allowed to testify, against an objection, that the impression formed upon his mind was that Kloek was failing very fast, physically as well as mentally. When the direct question was put to him as to the impression that was made upon his mind by the talk which he had detailed as to being rational or irrational, the witness was unable to answer in accordance with the rule stated in Holcomb v. Holcomb, supra, but the commissioner allowed the evidence to stand, in which the witness said: “It seemed to me that his mind was very weak, but I could not call it rational or irrational.” We think the order of confirmation should be set aside, together with the finding of the jury, and that a trial should be had in the county court of 'Oneida, county, of the questions of fact arising upon the competency of Simeon Kloek. Findings of the jury set aside, and the order of confirmation reversed, and a new trial of questions of fact ordered before a commission, and a jury to be appointed by the county court of Oneida county, with the costs of this appeal to abide the final award in the proceeding. All concur.  