The New York herald., 1869-02-21
SIXTH DISTRICT CIVIL COURT.
Landlord and Tenant.
Before Judge Lane.

Before Judge Lane.
Snvtne Us. Curey-This was special proceeding
tried before Jury and brought by Mrs. Fanny A
Smythe against Mrs. susan Carey to require her to
show cause why Mrs. Smythe should not have pos
session Of the furnished premises 13o East Twenty
first street. occupied by thedcendan by reason OF her
default paying $3.50 rent in advance for the present
month. The defendant denied that the rent was to
be paid In advance, the agreement being that 1t was
raised by the defence was that stamp was
put on the agreement but the Court overruled it, hold
ing that 1t was not necessary The defendant proved
l that there was subsequent verbal agreement be.
| tween herself and the plaintiff by which 1t was
agreed that the rent should be paid in instamens as
she received 1t from her boarders. The Court charged
the Jury that the law was very jealous Of ever vny
Ing or in any way modifying written and especially
% sealed contract by verbal one, aud verdict was
returned for plaintiff.
What Constitutes n Jsry-luterestins Opinion
Of Judge Lame.
The Metropolitan Board or Heath rs. James W.
Rda,sey.-This Is an action TO recover penalty for
$3.50, pursuant TO the provisions Of chapter seventy
four OF the laws Of 1896, entitled An to create
metropolitan Sanitary District and Board OF Health
therein for the preservation OF life and health and
to prevent the spread OF disease and OF chapter
CSC thereof
The defendant, upon joining issue, In compliance
with section thirty flour OF the act commonly known
as ''the District Court act,- entitled IAN act to re-
duce the several acts relating to the District Courts
in the city of New York into act- passed April
IT, 1867. demanded that the cause should be tried
by jury and In other respects conformcd to the
provisions OF the same. The cause was fhercupon
set down for trial and adjourned from time 10 time
until December = 1865, when, jury having been
parties sgnied their readiness TO proceed to trial.
The names OF the jurors we're then called from the
"venire,h and six OF said jurors answered and no
personal objection was made to any OF them by the
counsel Tor plaintiffs or defendant.
The Court was then about 10 proceed to administer
the usual form OF oath 10 he jury. the counsel
for the defendant objected, claiming that there was
clear right under the provisions Of the constitu
men. and that anJ less number did not, and never
did, constitute jury unless waived. The plaintiffs
jurors, conendng that the District Court before
referred TO limited the number OF jurors for the trial
Of cause IN districi court 70 SIX. and that
there was no power IN the Court TO empanel more
than that number; but upon delendaups counsel In
ssting upon the fnll number OF twelve he Withdrew
the Objection and offered TO proceed. provided thai
number was present and could be empanced. II
also appeared from the ''venirer that sixteen jury
men haa heen duy summoned, aud tlat out OF these
AZ least twelve or thirteen In attendance. The
hrst question 70 be determined is the power Of this
Court 70 empanel more ;han che SIX jurymcn pre-
scrtbel Nv section thlrtyfouf OF The act referred to-
Inc district courts OF this city are creatures
OF statute, and have no power beyond the acts
cres.ins tnen. iney are OF limited jurisdiction,
ana tnesr modes OF procedure must be coycrcnci by
the language OF the act clear iutentIon Of the
Legislature. section thlry-io Is clear and explicit
publicly draw twelve persons from ,he
nndrawn jury box,n &C.. and from these
when they appear "six Of the per."ns
attending snail he drawn 10 Try the causcr Tnere
s no provision whatever Tor any more either in this
sections especially the thirty-hintl ana fortcth,
clearly Indicate that II was the express meaning oi
the Legislature that this number IlxJsand this ony
should constitute the panel This is tile natural and
obvious meaning, and any other Interpretation
would be subtle and forced. "Whcn words are 40
pIain and explicit courts have right TO add 10 or
take from them IN order 70 change their meaning,
And, n there Is any defect IN the law, courts have
power to correct such supposed errors, omissions
defects. lStory Court section 392; Newail W. the
People, N Y. r., o, 07; the People vs.. Purtly, Nm
S ns vs y correct 4 Follows that rv
when demanded under section thirty-f0ur, must
consist Of six persons, and six only and that dts
tct court has no power to add 10 OF take away from
that number although party demanding the same
can, OF course waive mis- right TO the whole number
Of six Or proceed 70 ral before ,ne court unless ne
this matter Is. what IL meant by = Jury. according
to It's legal dennitIon and siencationf Article seven
"ln suits at common law, wnere the value IN con,
troversy shall exceed twenty dollars, the right Of
This provision Of the constitution OF the United
States would seem 70 bo paramount; but II ~ were
parts OF either Of the present any other constitu.
on Of this State, at least SO far az regards penal
The present constitution Of the state Of New York
1885, article I, section is In these words:he TRIAL
jury In which II has hereinbefore been used shall
remain invlolable forever; but jury trial may be
waived by the parties in all civil cases In the man
prescribed by law 'The trial by Jury" there
FORE would not only be that which has "hereinbef0re
been used, " but tnat which was legally used pre-
vious TO 1S4o.
Article l. section Of the state constitution Of 1872
provides that 1.-THE trial by jury In al In which
Il has been heretofore used shall remain inviolate
forever, and no new court shall be instituted but
such ~ shall proceed according 70 the course Of the