#### Jerome *v.*New York Evening Journal Pub. Co.

First Department,

February, 1908.

Where a motion for a struck jury under section 1063 of the Code of Civil Procedure contains a prayer for such other and further relief as to the court might seem proper, the court upon denying the motion for the struck jury may order the issues tried before a special jury as-provided in section 5 of chapter 602 of the Laws of 1901, as amended by chapter 458 of the Laws of 1904.

Appeal by the plaintiff, William Travers Jerome, from an order - of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of December, 1907, denying the plaintiff’s motion for a struck jury to try the issues herein.

*Howard 8.*Gams, for the appellant.

*Clarence j.*Shearn, for the respondent.

Laughlin, J.:

The plaintiff is the district attorney of the county of New York and the action is brought to recover for alleged libels concerning his *official conduct*published by the defendant in the Evening *Journal.*The articles published by the defendant charged the plaintiff, among other things, with having knowingly neglected his duty with respect to the prosecution of corporations and wealthy individuals who were guilty of violations of penal statutes of the State, and that he was influenced to refrain from prosecuting them by the fact that they had made large contributions to a campaign fund used in furtherance of his election as district attorney. The defendant pleads justification with respect to some of the articles and matter in mitigation of others. On the pleadings it would" seem that upon the trial the question may be presented as to whether certain facts known to the district attorney would have warranted or required an indictment by a grand jury, and whether the plaintiff in refraining from presenting the facts to the grand jury or in refraining from advising that they warranted indictments exercised due skill, care and diligence and was actuated by proper motives. An ordinary action for libel is, of course, properly triable by a jury drawn in "the usual manner. The questions presented for the" consideration of a jury in such actions do notsordinarily require either special or superior knowledge on-' the part of jurors for their proper determination. This case, however, possesses unusual features. ■ It concerns the entire public, citizens and sojourners within the county *374and throughout the State, for the alleged libel is against a public official holding an office of first importance in the administration of justice and the due administration of which requires that he shall be capable, diligent, fearless and, impartial in the discharge of its duties, and that he shall have and possess at all times the confidence of the people. Some of the questions to be presented to the jury, are quite unusual in libel cases. Ordinarily some specific act is charged and the question to be determined by the jury is whether, the charge is true, and if not true, the further question is usually presented as to whether the publication was made so recklessly, willfully or wantonly as to justify or require • the - award of exemplary damages in addition to the actual damages. But here, it will he observed that the - questions will arise as to what knowledge the plaintiff possessed" with reference to the crimes charged, by the defendant to'have been'committed by different corporations and' wealthy individuals, and as to whether he acted honestly and with due skill and diligence on such facts, which may involve a consideration of the course that he should have pursued with respect to investigating the facts and presenting the same to the grand jury.

Section 1063 of the Oode of Civil Procedure provides as follows: “ Where it appears to the court that- a fair and impartial trial'of an issue of fact triable by a "jury, joined in an action pending in the Supreme Court, cannot be* had without a-struck jury, or that the importance or intricacy, of the'case requires such a jury, the 'court must make an order, upon notice, directing a special jury to be struck for the trial-of the issue,. The order must specify the term, add it may sjiecify a particular day in the term,, when the jurors must attend.”. ■ • .

On the facts presented the, court would not be warranted- in holding that a fair and impartial trial cannot be had before a jury selected -from the trial panel in the ordinary manner; but it is manifest-that the importance and intricacy of the case requires that the issues should be tried before a specially selected jury to insure their determination, not only by fair and impartial jurors,- but by a jury of sufficient general arid. practical knowledge and intelligence to properly understand.the questions presented. In Hew York city grand jurors are not drawn from the ordinary panel. Special provision is made, for the selection from the panel of trial jurors of a list *375of jurors deemed specially qualified for service as grand jurors, and grand juries are drawn from the names thus selected. (N. Y. City Consol. Act, §§ 1638, 1641.*) Some of the issues to be presented to the-jury may be quite analogous to the questions'.presented for the consideration of a grand jury, and it is, therefore, quite as important that the jury to try these issues should be specially selected. In the early days it was the rule to order a struck jury in actions for libeling a public official in respect to his official conduct. *(Livingston*v. Cheetham, 1 Johns. 61; *Spencer*v. *Sampson,*1 Caines, 498; *Foot v. Croswell,*Id. 498, and note; also note, 1 Johns. 61, note b; *Thomas*v. *Rumsey,*4 id. 482; *Poucher*v. *Livingston,*2 Wend. 296.) Of late years the question has seldom arisen." The only case to which our attention has been called, in which the rule herein stated has not been followed, is *Adams*v. *Morgan*(21 N. Y. Supp. 1057),† where the General Term of the second department reversed an order for a struck jury made by Mr. Justice Willard Bartlett, in an action brought by the commissioner of city works in Brooklyn, for libel in his official capacity, upon the ground that it was not as intricate either on the law or the facts as a border negligence case, and that it was important only to the immediate parties. The earlier case's are neither alluded to nor distinguished in the opinion of the General Term in that case. The facts of this case clearly distinguish it from that; but if they did not, we regard the earlier decisions as sustained by both reason and authority.

We are of opinion, however, that there is no occasion for following the practice prescribed in this section of the Code and ordering a *stn'uck jury*in the county of New York, in view of the fact that section 5 of chapter 602 of the Laws of 1901, as amended by chapter 458 of the Laws of 1904, in effect^ authorizes the court to direct the issues in "a civil action to be tried by a *special jury*where a struck jury might be ordered. It was found to be impracticable, in important cases, to fill the jury box from the list of struck jurors. The jurors on the special jury list are selected, with particular care. ‘ The court is now authorized by this section to order a special jury where “it appears to the court that by reason of the importance or *376intricacy of the case, a special jury is required, or that * * the. issue to he tried has been so widely commented upon that the court. is satisfied that an ordinary jury cannot without delay and-difficulty be obtained to try such issue, or that for any other reason the due, efficient and impartial ■ administration of justice in the particular case would be advanced by the trial of such an issue by a special jury.” It will be seen that this authority is conferred in part in the same language as that .contained in section <1063 of the Code of Civil Procedure with respect to a struck jury and that in so far as it is not followed a broader authority is conferred. The motion in this case, while not in form for a *special jury,*was for a struck jury and for such other and further relief as to the court might seem proper. It rested in the discretion of the court to grant the motion for a struck jury or to direct a special jury. Since the plaintiff presented a case rendering it proper that the issues should be tried before a specially selected jury, we are of opinion that the court should have granted the motion but not for the relief specifically .requested, and should have directed the trial of the issues before a special jury.

It follows, therefore, that the order should be reversed, but inasmuch as the specific relief which we think should have been granted was not expressly requested and the provisions of the statute authorizing a *special jury*were not drawn to the.attention of the Special Term or to our attention by either party, without costs, and the motion granted without costs, for'an order directing that the trial of the issues be had by a special jury, the time of drawing the jury, the number of jurors to be drawn, the term of court and particular day in the' term when the special jurors are to attend, to. be fixed bn the settlement of the order to be entered on this decision and to-be incorporated in such order. ' .

Patterson, P. J., McLaughlin, Clarke and Scott, JJ., concurred.

Order reversed,- without costs, and order directed as indicated in opinion. Settle order on. notice.

*

 See Laws of 1882, chap. 410, §§ 1638, 1641, as amd. by Laws of 1895, chap. 484.— [Rep.

†

 Appeal dismissed in 138 N. Y. 636.— [Rep.