Fiero v. Reynolds
New York Supreme Court
APPEAL from a judgment of the Cayuga county court. The *&ction was ¿ommenced before a justice of the peace, by summons returnable May 7, 1853, and was tried on the 14th of May, before a jury; a venire being called for by the defendant. The jury did not agree, and were discharged by the justice, on the same day, Saturday.
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APPEAL from a judgment of the Cayuga county court. The *&ction was ¿ommenced before a justice of the peace, by summons returnable May 7, 1853, and was tried on the 14th of May, before a jury; a venire being called for by the defendant. The jury did not agree, and were discharged by the justice, on the same day, Saturday. The justice stated in his return, that he then “ proposed to the parties to postpone the cause until the 17th day of May, (Tuesday,) to which neither party made any objection.” There was no other consent to this arrangement than such as is to be implied from the silence of…
1Opinion of the Court
By the Court, T. R. Strong, J.
If the justice erred, in making the second venire returnable more than" forty-eight hours after discharging the first jury, it did not affect his jurisdiction ; the case was one of mere error or irregularity in the exercise of jurisdiction. But his judgment was subject to reversal for the error, as much so as if he had acted without jurisdiction. (Hard v. Shipman, 6 Barb. 621.)
The provision of the statute, prescribing the time within which a venire for a second jury upon a discharge by a justice of the first for their failure to agree, shall be made returnable,…
2Cases cited4 opinions
- Taylor v. BetsfordNew York Supreme Court · 1816
- Hard v. ShipmanNew York Supreme Court · 1849
- Ackerman v. FinchNew York Supreme Court · 1836
- Moody v. PomeroyNew York Supreme Court · 1847
3Cited by3 opinions
- Barnes v. BadgerNew York Supreme Court · 1857
- Beardsley v. PopeNew York Supreme Court · 1895
- Daley v. Dennis, New York County Courts1930