(dissenting). It is within the discretion of the trial court to direct that the jurors be examined and sworn individually after each juror is accepted by counsel on both sides, or to defer the swearing in until all twelve jurors have been accepted as satisfactory by both sides (People v. Carpenter, 102 N. Y. 238, supra). Whichever method is used, it is well established that the defendant may exercise a peremptory challenge at any time before the juror is actually sworn. (People v. Carpenter, 36 Hun 315, supra; Sorensen v. Hunter, 268 App. Div. 1078.) We find no statutory or common-law rule, however, *580wMch gives to the defendant the right to reserve his peremptory challenges until all twelve jurors are seated in the box. The approved practice of swearing each juror individually as soon as he has been pronounced satisfactory to both sides not only forecloses the further right of peremptory challenge as to such juror, but contravenes the idea that there is any right in the defendant to withhold his peremptory challenges until such time as all twelve jurors are seated in the box.
Here, the defendant was not deprived of any of his peremptory challenges. He was entitled to five peremptory challenges and used them all. In our view of it, he was deprived of no substantial rights which would warrant a reversal.
In People v. Carpenter (36 Hun 315, supra) the trial court, as in this case, instructed counsel at a time when there were eleven jurors in the box that he must then challenge peremptorily any juror which he wished to so challenge. Counsel did not challenge in accordance with the court’s direction but thereafter and before the jury was sworn, attempted to peremptorily challenge two of the eleven jurors seated in the box at the time the directions were given. The court disallowed the challenge and the Appellate Division reversed on the ground that the challenge had been wrongfully disallowed. In sustaining defendant’s exception to the disallowance of his challenge the opinion states at page 320: “To be available he must show on appeal that the ruling deprived him of some legal right. He could not do it by simply excepting to the rule; for the rule itself did not harm him till its operation deprived him subsequently of his challenge. If he challenged in conformity to the rule, his challenge would, of course, have been allowed, and he could assign no error in the allowance, for the juror would be rejected upon his own motion.”
We think that the same reasoning applies here and that there is no showing that the defendant has been deprived of any substantial right by the erroneous direction of the court. We therefore dissent and vote for affirmance.
All concur, except McCubn, P. J., and Vaughan, J., who dissent and vote for affirmance in an opinion by McCubn, P. J. Present — McCubn, P. J., Vaughan, Kimball, Pipeb, and Wheeleb, JJ.
Judgment of conviction and order reversed on the law and a new trial granted.