
    Edwin Walsh, plaintiff, vs. The Sun Mutual Insurance Company, defendants.
    1. A stay of proceedings to enable a party to move for a special jury, should not be granted, except at the trial term, or by the justice assigned to hold that part of the trial term upon whose calendar the cause is placed. If a stay is granted by a different justice, it may be vacated, on application of the defendant.
    2. When, and under what circumstances, a special jury will not be granted, in an action upon a policy of marine insurance.
    (Before Moncrief, J. at special term,
    March 11, 1864.)
    This was an application (upon an order to show cause) “ for a special jury to be struck for the trial of this cause.”
    
      
      James T. Brady, for the motion.
    
      W. Curtis Noyes, in opposition.
   Moncrief, J.

The affidavit states that the case is on the calendar of the present (March) term of this court and will very likely be reached on the first day of the term. Some such allegation was necessary to obtain an. order to show cause, avoiding the usual notice of motion of eight days. A stay of proceedings should not have been granted under such circumstances except at the trial term, or by the justice assigned to hold that part of the trial term upon whose calendar the cause was placed. (Rule 39 of the Rules of Court, § 402 Code.) The reason of the rule and great propriety of the practice is obvious. Otherwise the justice presiding at the trial term ceases to .control and regulate his calendar, and confusion and embarrassment occurs to counsel, clients and others. The stay could have been vacated upon the application of the defendants. (Code, § 324.)

This application is made upon an affidavit of the attorney for the. defendants upon the pleadings and proceedings in this action and the printed case on appeal in the case of this plaintiff and another insurance company. The affidavit states that in the judgment of said attorney a fair and impartial trial cannot be had without a struck jury, and that “the importance and intricacy of the cause require such a jury ; it discloses that the action is on a policy of insurance issued to the plaintiff upon the ship “Senator” and the “freight,” claiming the vessel to have been totally lost in August, 1862, to the damage of the plaintiff of $15,000 and interest from September 5th, 1862 ; that the answer denied the allegation in the complaint, that said vessel was seaworthy when she sailed on her voyage, and charges that her loss was occasioned not by perils of the seas or by any perils insured against, but by the fault and neglect of the owner. The affidavit proceeds to state “two grounds of defense to the action, both of which (as is alleged) are intricate and difficult, and not within the region of common knowledge, viz : First. That the ship when she sailed on said voyage was unseaworthy; and, Second, that the master was chargeable with a want of competency and seamanship in not making a near port of distress at the time when the. water is alleged to have been gaining upon and disabling his vessel,' and which he might and ought to have done in season to prevent her loss.” “That another action has been tried in this court in which the said issue of unseaworthiness was tried and the intricate and difficult nature thereof fully developed.”

The ’unseaworthiness of the vessel can readily and intelligently be proven by the builder of the vessel or by other competent persons who examined her at or about the time of her proceeding to sea, or by those employed or on board while at sea. This seems quite plain and simple. The competency of the master, or his want of skill and exercise of proper prudence and caution, when the circumstances in which his vessel was placed, as to her condition or otherwise, have been detailed, are susceptible of easy ascertainment by the evidence of those possessing proper skill and experience in the same vocation. There seems to me nothing intricate about such a defense ; it may be difficult to establish either branch of it to the satisfaction of a jury, but with the aid of learned counsel, the ability of skillful witnesses, and a charge from a learned judge, technical terms, if employed -by witnesses, can be made appreciable to the common understanding.. The jury (a common, not a special jury,) in the other and similar case experienced no difficulty in determining the case submitted to them; they agreed upon a verdict in less than the time ordinarily taken for consultation. If, as appears to be intimated in the affidavit, a verdict for the plaintiff cannot be sustained upon the evidence in that cause, the reply is, the case should not have been submitted to them, and the verdict will be set aside as against evidence. The trial of almost every case requires the employment of words technical in the law, the other learned professions or the peculiar vocation under discussion. The jury are bound to find their verdict upon the evidence given upon the trial of the cause ; not upon any personal experience or peculiar intelligence.

An examination of all the authorities found hy me, including those cited hy the learned counsel for the defendants, has not enabled me to discover a precedent for granting a motion in this case, and I ignore the fact that issue was joined in this case in November, 1862, and the case is upon the day calendar and during the last term, while then presiding, the counsel for both parties, I think, for several days answered “ready.”

In 3 Caines’ Rep. 84, (Hartshorn and others v. Gelston,) it having been suggested that the United States was interested in the cause, it was held that the parties litigant do not make a case important.

In 1 Caines’ Rep. 498, (Spencer v. Sampson,) there was a question whether the statute used the disjunctive or conjunctive, and the court held the former. The motion was granted for the reason that “ it is of great consequence to this court to protect its officer and those of the public in the discharge of their duty. The action was for words spoken of and concerning the plaintiff in his official character as attorney general. So too held in Van Vediten v. Hopkins, (2 John. 373;) Thomas v. Croswell, (4 John. 491, and 1 id. 161.)

In 1 John. 141, (Livingston v. Smith, Pres’t,) the affidavit alleged that the causes were, in the opinion of counsel, important; the only fact disclosed appears to be that the claim in one suit was for §10,000 and in the other for $18,000. No opinion is given. (And see Livingston v. Columbian Ins. Co., 2 Caines’ Rep. 28, and 380, supra.)

In 1 John. 141, (New Windsor Turnpike Co. v. Ellison,) the motion was granted for the reason that questions of this kind affecting the public were important in their consequences.

In 1 John. 314, (anonymous,) the rule was refused, although the fact appeared that another cause on the same policy had been tried and the jury had disagreed ; the affidavit stated that the action involved questions of intricacy and importance.

In Wright v. The Columbian Ins. Co., (2 John. 211,) a rule was refused. The affidavit stated the claim to be upon a policy of insurance, claiming a total loss to the amount of $27,500.

In 2 Wend. 296, (Poucher v. Livingston,) it was said to be an extraordinary case, and the order was refused.

In Patchin v. Sands, &c. (10 Wend. 570,) it is held that a struck jury is never granted except in extreme cases.

Nesmith v. The Atlantis Ins. Co., (8 Abbott’s Pr. 423,) if I remember accurately, was a case in which the jury had disagreed upon at least two trials ; the claim was large, and difficult questions of law and of. fact were invoked, and Judge Pierrepont refused the order.

The case of Giles v. Flagg, was important, of great public interest.

It will be observed that many of the cases cited, in which the rule was refused, were on policies of maratime insurance under claims for total loss, and it is not unjust to assume that 'every question of defense arose which can arise in the present action.

The motion is denied, with ten dollars costs to be paid by the defendants to the plaintiff or his attorney.  