Corcoran v. Tompkins Bus Corp.

234 A.D. 878

Opinion

Order denying motion for a new trial on the ground of newly-discovered evidence affirmed, with costs. No opinion. Young, Hagarty and Tompkins, JJ., concur; Lazansky, P. J., and Kapper, J., dissent with the following memorandum: Defendant did not have an impartial jury. The juror attacked admittedly withheld information that would have justified or permitted a peremptory challenge to his sitting on the jury. His withholding of the information that he had been in the employ of plaintiff’s employer was improper, particularly in view of the fact that the accident occurred while plaintiff was in the performance of Ms employment. The order appealed from involves a matter of absolute right and rests neither upon disputed facts nor the exercise of discretion. The right of peremptory challenge rests wholly with the litigant, and we may not assume, in view of past relations of the juror to the plaintiff’s employer, that the right in this case would not have been availed of; on the contrary, we may say that it would have been.