(dissenting.) The motion for a new trial, the denial of which is claimed to be an error, was made upon the following grounds: (1) That the challenge interposed by the defendant to each of two jurors was erroneously sustained by the court; (2) that the verdict was against the weight of the evidence, and should have been for the plaintiff. It is quite clear that the jury must have rejected the testimony of the plaintiff’s two witnesses, Dorr Baker and Simeon Baker, as wholly unworthy of credit, and insufficient to support a verdict. The character of these witnesses for truth was necessarily before the jury, and the latter’s determination thereof ought not to be disturbed by the court; for it is impossible to discover in the verdict any evidence that the jury was actuated by prejudice or any other unworthy motive. The account which these two witnesses, respectively, give of themselves and of their connection with the case and its incidents, was well calculated to produce upon the mind of the persons passing upon the question of fact a keen distrust of them, and a lively apprehension that a verdict could not be safely rendered upon their testimony. This may, indeed, be a misfortune to the plaintiff; yet the defendant ought not to be held in damages except upon evidence given by witnesses worthy of belief. This part of the case, therefore, is easily disposed of upon reading the testimony of the witnesses, upon whom the plaintiff’s case almost wholly depended, and which the Jury had a right to discredit. But there is a question more elaborately discussed in the brief of the learned counsel for the appellant, which merits serious attention. The action was brought under the civil damage act, (chapter 646, Laws 1873,) for the loss to the plaintiff of the means of support afforded by her son, who was her main reliance. The son was drowned April 20,1889, in the raceway leading from Owasco lake to the Auburn Water-Works Company, caused, as was alleged, by the intoxication produced, in whole or in part, by intoxicating liquor furnished to the deceased by the defendant. The peremptory challenges to the jurors allowed by the statute at that time (two in number) had been exhausted, but whether before or after the challenges made to the two jurors in question does not distinctly appear in the case. Two jurors— Graham and Tuller—were called and challenged by the defendant, which challenges were sustained by the court. The questions and answers of the two jurors, and the objections made, respectively, to them, were so nearly alike that .they may, for the purposes, of this re.view, be grouped together. *712They were respectively asked whether they had a prejudice against the liquor business. Eacli answered that he had, and that he would carry the prejudice against that business into the jury-box; and it was claimed by the defendant that such prejudice would influence his verdict. Graham answered as follows; “Question. So that, if you were to sit as a juror in this case, you would go into the box with a prejudice against the business, would you not? Answer. I would against the business; yes, sir. ” On examination by the plaintiff’s counsel he stated that he had no prejudice against "the defendant, and that he could sit and hear the evidence, and give an impartial verdict, according to the evidence, irrespective of what he thought of the business. The juror 'fuller further answered as follows: “Question. So that, if you were to sitas a juror in this case, you would go into the box with that prejudice existing in your mind? Answer. Yes, sir; I think I would.” This juror also said that he had no prejudice against the defendant, and that he could decide impartially upon the evidence. The challenge to each juror was sustained by tile court, and an exception was taken, and upon these two exceptions the appellant mainly relies for a reversal of the judgment.
The first clause of section 1166 of the Code of Civil Procedure provides as follows: “The first twelve persons who appear as their names are drawn and called, and approved as indifferent between the parties, and not discharged or excused, must be sworn, and constitute the jury to try the issue.” By section 1180, “an objection to the qualifications of a juror is available only upon a challenge. A challenge of a juror, or a challenge to the panel or array of jurors, must be tried-and determined by the court only. Either party may except to the determination, and it may be reviewed upon a question of fact, or a question of law, or both,—as, where an issue of fact presented by the pleadings is tried by the court,—except that where one or more exceptions are taken to the rulings of the court, made after the jury is impaneled, an exception to the determination of a challenge must be heard at the same time; and the case must contain the matters necessary to present it upon the facts or the law, or both.” Had the learned justice presiding at the trial ruled otherwise"than as he did upon this question,, (assuming in passing that the challenge was for principal cause,) such ruling, clearly enough, would not have been disturbed upon any review of it, for we are of the opinion that the objection of a juror to the business in which the defendant was shown to be engaged, namely, that of retail liquor selling, was not a legal disqualification on a challenge for principal cause, and that, so long as it appeared that the juror could hear the evidence and render a dispassionate verdict, he was competent, within" the meaning of the statute. But it by no means follows that the ruling actually made by the learned justice must result in a reversal of the judgment. The challenge was not for principal cause, as it seems to me, but to the favor, and for actual bias. Had the challenge been placed upon the ground that the juror was not competent to sit, and was actually disqualified by the terms of the statute by reason of entertaining such prejudice; the ruling of the learned judge would have presented clearly a legal error,—that is to say, an error in law,—and not merely an erroneous conclusion upon a question of fact. These two sections of tile statute above quoted miist be considered and construed together. Taken" as a whole, they properly give to the trial judge an ample discretion. By section 1880 the decision is re viewable, according to the nature of the objection, either as a question of law or a question of fact. Where, however, the question, as in this case, is undertaken to be reviewed by appeal as arising upon a question of fact, that is to say, where the conclusion of the learned trial judge as to tile competency of the juror under a challenge for actual bias is drawn in question, then recourse must be had to the provision of section 1166. Under this section each of the jurors must be approved as indifferent between the parties. The judge at the trial had means of accurately determining the capacity and integrity of the *713jurors, which a court, on appeal, cannot possibly possess from an inspection of the printed record alone. The jurors’ mode of answering questions, intelligence, appearance, together with their apparent candor, general character, and the.many little tilings which appear on the voir dire, but which are incapable of being reproduced in print, were elements which necessarily entered into the final determination of the trial judge in his selection of the 12 men. So long as it appears clearly, as it does in the case before us. that 12 indifferent and impartial men were actually impaneled to try the case, the appellate branch of the supreme court should be loath to reverse the results of the trial simply upon the ground that the members of that court might have come to a different conclusion, acting solely upon the printed testimony, from the one arrived at by the trial judge. From the nature of the case much latitude must be given to the judge at the circuit. Were the obverse of the question presented,— namely, a juror retained by the court who ought to have been excluded,—and a case thus presented which would raise a suspicion of a tainted verdict, an entirely different question would be presented. The conclusion of the justice upon the question of the actual bias of the jurors ought not to be disturbed unless the party appealing has been prejudiced. It cannot be said that a party is prejudiced in law by a ruling of the court that excluded from a panel of jurors persons that were hostile and opposed to the business carried on by his opponent. Maretzek v. Cauldwell, 5 Rob. (N. Y.) 660. In the case of criminal actions, the expression or formation of an opinion, or impression in reference to the guilt or innocence of the defendant, or a present opinion or impression in reference thereto, is not a sufficient ground for a challenge for actual bias to any person otherwise legally qualified, if he declare on oath that he believes such opinion or impression will not influence his verdict, and that he can render an impartial verdict according to the evidence, and the court is satisfied that he does not entertain such a present opinion or impression as would influence his verdict.
In analogy to the statute for the trial of criminal cases, where the general provision for the impaneling of a jury is the same as in civil actions, why should not the trial court be left untrammeled in its effort to exclude from the jury-box every person having an actual bias against the business of one of the parties when such occupation is neither malum in se nor malum prohibitum? While, therefore, the rejection of a competent juror may be deemed ground of error, although the jurors who actually try the case are competent, as was held in the case of Hildreth v. City of Troy, 101 N. Y. 234, 4 N. E. Rep. 559, where the error of the trial judge was one of law, holding that a juror was incompetent by reason of being an inhabitant of the city which was the defendant, yet, where the objection goes to actual bias, and the determination thereof was at most but an error of fact, and that, too, in an effort to obtain an impartial jury, and where there appears to be no objection to the 12 jurors actually impaneled, I am of the opinion that the error is unimportant, and not prejudicial to any legal rights of the appellant, and that, consequently, there should be no review of such determination, except in the case of abuse or an arbitrary use of power by the trial judge, of which there is not the slightest suggestion in the case before us. There is another reason why the appellant ought not to be allowed to prevail upon this appeal, and that is that, prior to the challenge made to the jurors Graham and Tuller, the plaintiff’s counsel had examined three jurors, who had stated, in answer to his questions, that they were prejudiced against the enforcement of the civil damage act; and thereupon the counsel asked for and obtained a ruling of the court that such jurors were not competent to sit. The plaintiff, therefore, appears in the attitude of a person who had, through great diligence of counsel; obtained a decision of the trial court upon the qualification of jurors under this statute, (assuming that such challenge was for principal cause,) and he ought not now to be heard to complain if, after procuring such ruling, the court *714felt bound to be entirely consistent, and applied the correlative proposition in. favor of the defendant’s contention, namely, that prejudice against the business of liquor selling was also a disqualification. If one proposition is correct, the other must be also. The judgment and order appealed from should-be affirmed.