I do not think it was intended by the amendment of 1883 to section 1166 of the Code of Civil Procedure to permit a party to an action to sit by at a trial and not inquire into the relationship of jurors to his adversary, take the chances of a trial and, if beaten, have the verdict set aside at any time within six months from the rendition thereof, where it appears that he was not prejudiced thereby.
While the provisions of section 1180 of the Code, requiring an *282objection to the qualifications of a juror to be taken by challenge, have been modified, so that the disqualification of a juror by reason of relationship to a party may be raised after verdict, as provided in the amendment to section 1166, that does not require or warrant a court in setting it aside if no harm has come to the party moving to set it aside. Such a disqualification of a juror is unlike that of a judge who is related to one of the parties within the prohibited degree of relationship. In the latter case a judgment rendered by a disqualified judge is void, but not so as regards' a disqualified juror. Reither under the common law nor under the statute has it ever been held that the verdict of a jury of which one of its members is related to one of the parties within the prohibited degree is void. (Salisbury v. McClaskey, 26 Hun, 262; Stedman v. Batchelor, 49 id. 390; People v. Mack, 35 App. Div. 114; People v. Thayer, 132 id. 593.)
I think the order refusing to set aside the verdict and denying the motion for a new trial should be affirmed.
McLennan, P. J., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.