Snell v.

contract is disputed, there is an absolute right to a jury trial. Niagara Paper Mills, (1908) 193 N. Y. 433, 86 N. E. 460, 25 L. R. A. (N. S.) 264, affirming 126 App. Div. 921, 111 N. Y. S. 1145.

Enforcement of penalty or forfeiture.— Suits for the enforcement of penalties or forfeitures had been generally tried by jury; and that mode of trial is preserved in such suits by this section. Colon v. Lisk, (1897) 153 N. Y. 188, 47 N. E. 302, 60 A. S. R. 609. In that case the court held unconstitutional chapter 383, Laws of 1896, authorizing the summary seizure of any boat or vessel used by one person in interfering with oysters or other shell fish belonging to another, and its forfeiture and sale by an exclusive procedure before a justice of the peace with no provision for a jury trial.

Removal of nuisance and damages therefor.- Since an assize of nuisance brought for the removal of a nuisance and for damages occasioned by it was formerly tried by jury, a similar action when brought under the code must be so tried. Hudson v. Caryl, (1871) 44 N. Y. 553.

Adjustment of executor's or administrator's account.- Executors or administrators can require that accounts involved in actions brought by or against them be adjusted by jury. Wherefore, section 1013 (Code of Civil Procedure), allowing the compulsory reference of causes wherein long accounts must be examined, is unconstitutional, since it makes no exception of suits to which an executor or administrator is a party. Malone v. St. Peter, etc., Church, (1902) 172 N. Y. 269, 64 N. E. 961, affirming 69 App. Div. 420, 74 N. Y. S. 1005.

Annulment of fraudulent transfer by bankrupt. This section secures the right to trial by jury in a suit by a trustee in bankruptcy to set aside a fraudulent and covinous transfer of the bankrupt. Allen v. Gray, (1911) 201 N. Y. 504, reversing (1910) 139 App. Div. 428, 124 N. Y. S. 137.

Title to office. In view of prior usage the right to trial by jury is secured in actions in the nature of quo warranto to test title to office. Metz v. Maddox, (1907) 189 N. Y. 460, 82 N. E. 507, 121 A. S. R. 909, reversing 121 App. Div. 147, 105 N. Y. S. 702; People v. Albany, etc., R. Co., (1874) 57 N. Y. 161. Thus, chapter 538, Laws of 1907, providing for a recount and recanvass of the votes cast for the office of mayor at the election of the 7th of November, 1905, in all cities of the first class in which the ballots had been preserved, is unconstitutional in so far as it operates to determine the title to that office, since the mode of recounting prescribed was by the court and not by jury.

Violations of Excise Law.- Misdemeanors by violation of the Excise Laws had formerly been tried by jury, and, therefore, the Act to Prevent Intemperance (Laws of 1855), providing that offenders against its provisions should be tried by certain inferior justices without jury or with one of six men only, is invalid. Wynehamer v. People, (1856) 13 N. Y. 378.

Intoxication in public.- Where intoxication in public is made a criminal offense, persons charged therewith must be tried by jury. People v. Baird, (1877) 11 Hun 289.

Commitment of insane.- Jury trial is a matter of right in proceedings for the commitment of a person to an insane asylum. Sporza v. German Sav. Bank, (1908) 192 N. Y. 8, 84 N. E. 406, affirming 119 App. Div. 172, 104 N. Y. S. 260.

Annulment of marriage; separation.— The right of jury trial is secured in actions for the annulment of marriages except, apparently, where the annulment is sought on the ground of physical incapacity. Morrell v. Morrell, (1879) 17 Hun 324. This section does not, however, confer upon a party to an action for a separation from bed and board as a matter of right, the privilege of having the issues of fact tried by a jury, even though the validity of the marriage is involved in the action and may be determined by the final judgment. Packard v. Packard, (1903) 88 App. Div. 339, 84 N. Y. S. 1090; Carter v. Tallcot, (1885) 36 Hun 393.

Actions for the recovery of money must be tried by jury. Wheelock Lee, (1878) 74 N. Y. 495.

Disfranchisement.— An elector cannot be disfranchised without jury trial. Green v. Shumway, (1868) 39 N. Y. 418.

Determination of damages.—By virtue of this section a party bringing suit for damages is entitled to have the amount thereof ascertained by a jury. Ives v. South Buffalo R. Co., (1911) 201 N. Y. 271, 94 N. E. 431, Ann. Cas. 1912B 156, 34 L. R. A. (N. 8.) 162; In re Townsend, (1868) 39 N. Y. 171; Greason v. Keteltas, (1858) 17 N. Y. 491; Saxton v. New York El. R. Co., (1896) 12 App. Div. 263, 42 N. Y. S. 508. Wherefore, a statute empowering a corporation to appropriate property to its use, and authorʼzing the appointment of a commission to ascertain the compensation to be allowed therefor is unconstitutional in directing that commission also firally to determine damages to be paid by the company for lands already taken under no statutory authority, since the legislature cannot deprive a person of the right under this section to have damages assessed by jury, though by virtue of article 1, section 7, it may order a commission to award compensation for the property taken under eminent domain proceedings. In re Townsend, supra. Verified plea.- Allegations of substantial defense when verified cannot be stricken from the answer to a complaint as sham and is relevant, inasmuch as prior to the adoption of the constitution a party was entitled to have such allegations determined by jury. Wayland v. Tysen, (171) 45 N. Y. 281. To the same effect, Thompson v. Erie R. Co., (1871) 4₺ N. Y. 468. General denial.- A general denial under the Code i ta itamount to a plea of the general issue at common law, and since at conm n law such a plea could not be stricken out as sham and irrelevant, a general denial cannot be so stricken out. Wayland v. Tysen, (1871) 45 N. Y. 281. To the same effect, Thompson v. Erie R. Co., (1871) 45 N. Y. 468. Since, too, the same mode of pleading is pursued under the Code in both equitable and legal actions, this rule of practice must be applied in cases forme y cognizable in equity, and though jury trial is not generally preserved in an equitable action a general denial occurring therein may not be stricken ut. Thompson v. Erie R. Co., (1871) 45 N. Y. 468.

2. Equitable Action.

Statement of rule.- This section does not guarantee the right to jury trial in cases of which courts of equity formerly had jurisdiction, for in such cases issues of fact as well as questions of law were determined by the court, the finding of a jury on any issue submitted to its consideration serving only to advise the conscience of the chancellor. Lynch v. Metropolitan El. R. Co., (1891) 129 N. Y. 274, 29 N. E. 315, 26 A. S. R. 523, 15 L. R. A. 287; Thompson v. Erie R. Co., (1871) 45 N. Y. 468; In re Empire City Bank, (1858) 18 N. Y. 199.

Enforcement of lien.- Jury trial need not be secured in proceedings prescribed for the enforcement of liens, an action to foreclose a lien being formerly cognizable in equity. In re King, (1901) 168 N. Y. 53, 60 N. E. 1054, modifying 61 App. Div. 152 70 N. Y. S. 356; Schillinger Fire-Proof Cement. etc., Co. v. Arnott, (1897) 152 N. Y. 584, 46 N. E. 956, affirming 86 Hun 182. 33 N. Y. S. 343, 86 Hun 618, 33 N. Y. S. 1134; Kenney v. Apgar, (1883) 93 N. Y. 539; Sheppard v. Steele, (1870) 43 N. Y. 52, 3 Am. Rep. 660. Thus, the Lien Law of 1862 is not unconstitutional in failing to require trial by jury in proceedings for the enforcement of liens against vessels. Sheppard v. Steele, (1870) 43 N. Y. 52, 3 Am. Rep. 660. Similarly, the provisions of section 66 of the Code of Civil Procedure, allowing a court without jury to determine and enforce the lien of an attorney on the judgment or decision of his client or the proceeds thereof, is constitutional. In re King, (1901) 168 N. Y. 53, 60 N. E. 1054, modifying 61 App. Div. 152, 70 N. Y. S. 356

And the Mechanic's Lien Law (ch. 342, Laws of 1885), containing similar provisions, is also valid. Schillinger Fire-Proof Cement, etc., Co. v. Arnott, (1897) 152 N. Y. 584, 46 N. E. 956, affirming 86 Hun 182, 33 N. Y. 8. 343, 86 Hun 618, 33 N. Y. S. 1134.

The winding up of insolvent corporations fell within the jurisdiction oʻ courts of equity. The Act of 1849 (ch. 226) authorizing summary proceedings to compel contribution by members of such corporations is, therefore, not objectionable within this section. In re Empire City Bank, (1858) 18 N. Y. 199. By reason of a like consideration the Act of 1862 (Sess. Laws, 743), providing for the settlement by reference of controversies between the receiver of an insolvent mutual insurance company and its members or stockholders, is constitutional. Sands v. Kimbark, (1863) 27 N. Y. 147. Compulsory transfer of stock.- Trial by jury is not a matter of right in an action to compel a transfer of stock by a corporation. Cushman v. Thayer Mfg. Jewelry Co., (1879) 76 N. Y. 365, 32 Am. Rep. 315.

Foreclosure of mortgage. The right to jury trial is not secured in an action for the foreclosure of a mortgage given as collateral on certain bonds. Knickerbocker Life Ins. Co. v. Nelson, (1876) 8 Hun 21.

Action to restrain violation of ordinance.- No right to trial by jury exists in an action to restrain the violation of an ordinance. Rochester v. Gutberlett, (1914) 211 N. Y. 309, 105 N. E. 548, Ann. Cas. 1915C 483, L. R. A. 1915D 209.

Proceeding by executor or administrator for possession of property.- No right to jury trial exists in proceedings before a surrogate by an executor or administrator to secure possession of property of his testator or intestate. In re Curry, (1881) 25 Hun 321.

Recovery of property of judgment debtor by receiver.- The provisions of this section do not secure the right to jury trial in a suit by a receiver of a judgment debtor for the recovery of the debtor's property. Powell v. Wal

dron, (1882) 89 N. Y. 328, 42 Am. Rep. 301.

Divorce. Actions for divorce are apparently of equitable cognizance; but since an issue of adultery in an action of that nature was always determined by jury prior to 1846, the right to jury trial of such issues is preserved by this section. Moot v. Moot, (1915) 214 N. Y. 204, 108 N. E. 424, affirming 164 App. Div. 525, 149 N. Y. S. 901; Halgren v. Halgren, (1914) 160 App. Div. 477, 145 N. Y. S. 987; Cohen v. Cohen, (1914) 160 App. Div. 240, 145 N. Y. S. 652; Lowenthal v. Lowenthal, (1893) 68 Hun 366, 22 N. Y. S. 858; Conderman v. Conderman, (1887) 44 Hun 181, 7 N. Y. St. Rep. 78; Galusha v. Galusha, (1887) 43 Hun 181, 4 N. Y. St. Rep. 399, judgment modified on other grounds (1889) 116 N. Y. 635, 22 N. E. 1114, 15 A. S. R. 453, 6 L. R. A. 487. Thus, a court is not competent to make a grant of alimony pendente lite conditional on the waiver by the wife of her right to jury trial. Lowenthal v. Lowenthal, (1893) 68 Hun 366, 22 N. Y. S. 858.

Effect of introduction of equitable matter into action triable by jury.— The right to jury trial cannot be defeated by the injection into an action wherein that right exists of matters whereof equity had jurisdiction. Thus, an action to try title is legal and a party thereto cannot by imputing fraud to a claimant rob him of his right to have the issues presented determined by jury. Prospect Park, etc., R. Co. v. Morey, (1913) 155 App. Div. 347, 140 N. Y. S. 380. Where, too, a cause of action cognizable in equity is joined with one to which the right of jury trial attaches under this section, the entire action must be tried by jury. Wheelock v. Lee, (1878) 74 N. Y. 495; People v. Albany, etc., R. Co., (1874) 57 N. Y. 161; Davis v. Morris, (1867) 36 N. Y. 569; Hudson v. Caryl, (1871) 44 N. Y. 553. A plaintiff may waive his right to jury trial, however, by voluntarily joining claims for both equitable and legal relief in one suit though he cannot by so doing prejudice the rights of the defendant in the action. Cogswell v. N. Y., etc., R. Co., (1887) 105 N. Y. 319, 11 N. E. 518. And the rule does not extend

to cases wherein the legal remedy involved is purely incidental to the main equitable relief sought. Thus, the right to trial by jury does not exist in an action brought to enjoin a continuing trespass and for damages occasioned thereby, the damages being auxiliary only to the injunction asked for. Lynch v. Metropolitan El. R. Co., (1891) 129 N. Y. 274, 29 N. E. 315, 26 A. S. R. 523, 15 L. R. A. 287. See also Henderson v. New York Cent. R. Co., (1879) 78 N. Y. 423; Williams v. New York Cent. R. Co., (1857) 16 N. Y. 97, 69 Am. Dec. 651; Pope v. Manhattan R. Co., (1903) 79 App. Div. 583, 80 N. Y. S. 316.

III. WAIVER.

Prescription of modes of waiver.- The power of prescribing modes of waiver in a civil case pertains exclusively to the legislature. The judiciary cannot, therefore, curtail the right to jury trial by general rules of practice providing for its waiver: and a rule placing any restriction on that right other than those imposed by law is invalid. Moot v. Moot, (1915) 214 N. Y. 204, 108 N. E. 424, affirming 164 App. Div. 525, 149 N. Y. S. 901, and overruling Cohen v. Cohen, 160 App. Div. 240, 145 N. Y. S. 652; Halgren v. Halgren, 160 App. Div. 477, 145 N. Y. S. 987; Conderman v. Conderman, (1887) 44 Hun 181, 7 N. Y. St. Rep. 78.

Commitment of lunatic as civil case.- - Proceedings for the determination of the sanity of an alleged lunatic and for his commitment to an asylum if adjudged insane are civil within the clause of this section allowing parties to civil cases to waive jury trial in the manner prescribed by law; and consequently an act (§ 2323a, Code of Civil Procedure) permitting such waiver is constitutional. Sporza v. German Sav. Bank, (1908) 192 N. Y. 8, 84 N. E. 406, affirming 119 App. Div. 172, 104 N. Y. S. 260.

Waiver independent of statute.-- The right to jury trial in civil cases is personal and may therefore be personally waived by the parties, in other modes than those prescribed by law. A waiver will be inferred by the courts from the failure of the parties to make seasonable demand for trial by jury, or from any other conduct indicative of an intent to waive. Baird v. New York, (1878) 74 N. Y. 382; People v. Quigg, (1874) 59 N. Y. 83; McKeon v. See, (1873) 51 N. Y. 300, 10 Am. Rep. 659, affirming 4 Robt. 449; West Point Iron Co. v. Reymert, (1871) 45 N. Y. 703; Barlow v. Scott, (1861) 24 N. Y. 40; Greason v. Keteltas, (1858) 17 N. Y. 491; Matter of Kipp, (1902) 70 App. Div. 567, 75 N. Y. S. 589; Wadsworth v. Hinchcliff, (1914) 163 App. Div. 266, 148 N. Y. S. 798; Akin v. Amsterdam Water Com'rs, (1894) 82 Hun 265, 31 N. Y. S. 254; People v. Eckler, (1880) 19 Hun 609. See also Vose v. Cockcroft, (1871) 44 N. Y. 415; Dayharsh v. Enos, (1851) 5 N. Y. 531; People v. Eckler, (1880) 19 Hun 609. By voluntarily incurring liability under statute a person impliedly agrees to submit to the proceedings provided therein for the enforcement of the liability; and though no provision is made by the statute for trial by jury, the person cannot object, having by his own action made himself answerable to the proceedings prescribed. Buttling v. Hatton, (1897) 18 App. Div. 128, 45 N. Y. S. 720. However, a failure to object to an order transferring a case from a jury to a special term of court should not be construed as a waiver where the right to jury trial was insisted on when the case was brought to trial. Allen v. Gray, (1911) 201 N. Y. 504, reversing 139 App. Div. 428, 124 N. Y. S. 137. And where the trial judge awarded damages in addition to the other relief claimed, the defendant could not be held to have waived his right to have the damages assessed by a jury by allowing the court to try the case without jury. Bradley v. Aldrich, (1869) 40 N. Y. 504, 100 Am. Dec. 528. See also Lewis v. Mott, (1867) 36 N. Y. 395; Wheelock ▼. Lee, (1878) 74 N. Y. 495.

Waiver in criminal case.— Since this section expressly extends to parties

to a civil case the privilege of waiver, it impliedly denies that privilege to a defendant in a criminal prosecution. People v. Cosmo, (1912) 205 N. Y. 91, 98 N. E. 408, 39 L. R. A. (N. S.) 967. Nor can an accused by consent substantially change the nature of the jury by which he shall be tried from that provided by this section: and since the jury here secured is a commonlaw jury of twelve men, the trial of a defendant for a capital offense is a nullity if prosecuted before a jury composed of a less number than twelve even though the trial was so conducted at the request and with the consent of the defendant. Cancemi v. People, (1858) 18 N. Y. 128; People v. Toledo (1912) 150 App. Div. 403, 135 N. Y. S. 49. "If a deficiency of one juror might be waived, there appears to be no good reason why a deficiency of eleven might not be: and it is difficult to say why, upon the same principle, the entire panel might not be dispensed with, and the trial committed to the court alone. It would be a highly dangerous innovation, in reference to criminal cases, upon the ancient and invaluable institution of trial by jury, and the constitution and laws establishing and securing that mode of trial, for the court to allow of any number short of a full panel of twelve jurors." Cancemi v. People, (1858) 18 N. Y. 128. However, where a trial was com menced before a regularly impaneled jury of twelve men, and after all of the evidence was in on both sides, and both parties had rested, an adjournment was taken for several days on account of the illness of one of the jurors, the defendant could agree that a twelfth juror should be selected, who, with the eleven others, should be sworn as the jury in the case. The court said: "Undoubtedly the defendant could have insisted on having twelve new men on the second jury. This he did not do, but both himself and counsel agreed in open court to accept as eleven jurors those who had been on the previous jury. Defendant could waive his right to object to these jurors, and having done so, could not thereafter be heard to say they were not competent to act." People v. Toledo, (1912) 150 App. Div. 403, 135 N. Y. S. 49.

§ 3. Religious liberty.

Competency of witnesses.

Abuse of liberty.

The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this State to all mankind; and no person shall be rendered incompetent to be a witness on account of his opinions on matters of religious belief; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State.

Const. 1777, Art. XXXVIII; amended, Const. 1821, Art. VII, § 3; amended, Const. 1846, Art. I, § 3.

Sunday laws.-The Christian sabbath, as one of the institutions of the Christian religion, may be protected from desecration by such laws as the legislature may deem necessary to secure to the community the privilege of undisturbed worship, and to the day itself that outward respect and observance which may be deemed essential to the peace and good order of society. A law enacted to preserve the public peace and order on Sunday and prohibiting dramatic performances on that day is therefore valid, the legislature being the sole judge in such a case of what act it is advisable to prohibit. Newendorff v. Duryea, (1877) 69 N. Y. 557, 25 Am. Rep. 235. Similarly,