On motion of. the defendants an order was made that a special jury be struck for the trial of the issue raised by the pleadings. An appeal was taken by the plaintiff from such order, but the same was affirmed by this court. (103 App. Div. 596.) Pending the determination of the appeal the proceedings to strike the jury were by consent adjourned from the time fixed in the order to the 17th of March, 1905, when both parties appeared by their respective counsel before the commissioner of jurors. It then appeared that the commissioner had selected from the general jury list forty-eight names which, on the eleventh of March, he inclosed to both parties-*518with a letter saying : “ Pursuant to request to that effect I'herewith send to each of you a list of the forty-eight (48) names from Which I propose to have you strike the jury in the case of ‘ The Industrial and General-.Trust, Limited, against J. Kennedy Tod andiianothei\Please bear iii mind that' March 14, 1905, at 10 a. m., at this office Inis been fixed by order of fhe Court as the time and place where you are to attend and strike twenty-four (24) names from the list.”
It also appeared that neither the plaintiff nor' its attorneys had made any request for such list, or had any communication or understanding with the commissioner or any one else on the subject, and that the names had been selected without its knowledge in the absence of its counsel. In.view of. that fact a request was made by its qounsel that the list prepared by the commissioner be abandoned and a new list of forty-eight names selected. .This request was-refused, the commissioner insisting that the list had been properly prepared and that the jury .should be struck from-it, which was in fact done, against fhe earnest protest and objection of plaintiff’s > counsel.
I am of the-, opinion that the action of the commissioner in selecting the list, of names was irregular, and for that reason the request of plaintiff’s counsel should have been granted. , .
'. The proceeding relating- to the selection of a special jury- is governed by sections 1063 to 1069, inclusive, of the Code of Civil Procedure, where the method to be pursued is pointed out and must be strictly 'followed. ■ It is a special proceeding, designed for a particular purpose, and the statute cannot be disregarded in.any respect. , Every direction must be complied with. (People v. Tweed, 50 How. Pr. 262; Hildreth v. City of Troy, 101 N. Y. 234.) One. of the sections (1065) provides that at' tlfe time' appointed the commissioner must attend at his office with the original lists or books filed or kept in his office as required by law, containing the names of the persons who are then liable to servé as trial jurors,, and in the presence of the parties or. their attorneys or counsel must strike atrial jury as therein - stated, and one of the first provisions is that he must select from the' lists, or books the names of forty-eight persons whom he deems most •indifferent between the ^parties and best' qualified to try the issue . and must make and certify a list of those names. The commis- . sioner did not comply in this respect with the statute. He selected *519a list of forty-eight names, not in the presence of the parties, their counsel or attorneys, but in their absence, and either party, by reason of that fact, was entitled to have the list set aside. The order directing that a' special jury be struck, which was' the only authority the commissioner had to act in the matter, had not been complied with, because that contemplated the selection of a special jury in the manner provided by statute.
But it is urged that even though the proceedings were irregular the court at Special Term was not justified in setting aside the list. I am unable’ to see the force of this contention. The court at Special Term had in the first instance directed that the jury be struck, and when it appeared that any irregularity had occurred in the selection of the jury which would render the proceeding a nullity or jeopardize the result sought to be obtained by such jury, then it had the power and it was its duty to direct that the jury as selected be set aside and discharged and a new jury be struck. It had precisely the power in the one instance that it had in the other, otherwise all efforts to obtain a struck jury might be rendered futile by the officer making the selection.
The case of People ex rel. Kirtland v. Dillon (17 Hun, 1) is directly in point. There.an order was made that a jury be struck, and irregularities having occurred in the selection, the list was set aside and a new list ordered prepared. The court on appeal affirming the latter order, said : “ The court had ordered a struck jury. Afterwards, for irregularities in the striking of the jury, the court ordered that jury to be set aside and discharged and anew jury to be struck. The defendant appeals and insists that the court had no power to make such an order. I see .no reason why the court might not set aside an order which it had made. * *. * In the present case there seems to have been some irregularity in the .manner of preparing the list from which the names are to be struck. It would be strange if the court could not set aside the former order and afford an opportunity for a more strict compliance with the statute.”
The list in the case before us was selected in the absence of the parties or their counsel or attorneys,- while the statute directed that it should be done in their presence. It was, therefore, irregular and ought to have been set aside. The purpose sought to be *520accomplished by requiring'that the names be selected 'in the pres-enceof-the parties or their counsel or attorneys is a wholesome one. It tends to insure.the-selection of a jury contemplated by the statute,, viz., a; jury “ most indifferent between the parties and best qualified to try the-issue.”
It also appeared that when the list of names under consideration was selected by the commissioner he had no knowledge of the issue-t-o be tried in the -action. It would seem, in view of the fact that, the statute requires the selection of the names of persons best qualified to try the issue, that the commissioner, before- making the selection, should familiarize himself with it, otherwise it is difficult to see - liow he can act intelligently or do what the statute requires. But it is unnecessary to- pursue this subject, inasmuch as a new jury, 1 must be struck, and' the commissioner will undoubtedly do thisbéfore proceeding to select the names.
The order appealed from, therefore, must be reversed, with ten dollars costs and disbursements, and- the motion to set aside the list prepared by the commissioner granted, with ten dollars' costs, and a new jury ordered struck at a time to be fixed- in the order. .
Yak Brunt, P. J., Patterson, Ingraham and Laughlin, J.T., concurred.
Order reversed-, with ten dollars costs and disbursements, and motion granted as stated in opinion, with ten dollars costs.