The People of the State of New York, Appellant, v. George B. McClellan, Respondent, Impleaded with William R. Hearst, Defendant

The People of the State of New York, Appellant, v. George B. McClellan, Respondent, Impleaded with William R. Hearst, Defendant. First Department, March 6, 1908. Trial — special jury ordered — appeal — power of Appellate Division to grant relief under general prayer. An action involving the validity of the election of the mayor of the city óf Méw ■ York and.turning upon questions of fact is of such grave importance that it should be tried before a special jury under the provisions of chapter 602 of the Daws of 1901, as amended by chapter 458- of the Laws-of, 1904, rather than before a struck jury." Where a notice of motion for an order for a struck jury asks for." such other and further relief as to the court may seem just,” the Appellate Division may order a trial before a special-jury without remitting the case to the Special Term. Appeal by the plaintiff, The-'People of the State of Mew York, from an order' of the Supreme Court, made at the Mew York Special Term and entered in the office of the1 clerk of the county of Mew.York on the 25th day of January, 1908, granting,the motion of the defendant George B.. McClellan that the issues be tried by a struck jury. Clarence J. Skearn, for the appellant. ■Eugene Lamb Richards, Jr., for the respondent. [MAJORITY — Per Curiam:] Per Curiam: This is, as was well said by the court below, a case of the gravest •importance. Mot only does it involve the title to the. principal administrative office of the city, but it is quite probable that its decision will turn upon questions of fact. For' these reasons it is proper that it should be tried before a jury specially selected. We. consider, however, that an impartial and satisfactory jury can be more surely and speedily obtained by a resort to the special jury panel provided for by chapter 602 of the Laws of 1901, as amended by chapter 458 of the Laws of 1904, than by an attempt to procure a struck jury. (Jerome v. New York Evening Journal Pub. Co., 124 App. Div. 372.) The notice of motion asked for an order for a struck jury, and “ for such other and further relief as to the court may seem just.” It is unnecessary, therefore, to send the case back to the Special Term. The order appealed from will, therefore, be modified, without costs, so. as to direct that the trial be had before a jury to be drawn from the special jury list. The number of jurors, the time when the drawing shall take place, and the term of the court and the particular day of the term when such special jury must attend will be fixed by the order to be entered hereon, which must be settled on notice. Present -- Patterson, P. J., Ingraham, McLaughlin, Olarke and Scott, JJ. Order modified as directed in opinion, without costs; order to be entered as therein indicated. Settle order on notice: