Section 723 of the Code of Civil Procedure declares “ the court must disregard an error or defect in the pleadings or other proceedings which does not affect the substantial rights of the adverse party.” What were the relator’s “ substantial rights ? ” To have *185a fair, true and impartial jury. Did ho not have it % If so has he been injured by any irregularity in drawing a j ury ?
Again, section 2140 of the Code of Civil Procedure declares what questions shall be determined by the appellate court upon ■certiorari, and among them is, whether “ any rule of law affecting the rights of the parties thereto has been violated to the prejudice of the relator ? ” Even before the Code it was held on a common law certiorari, “ only errors in law affecting materially the rights ■of the parties may be corrected.” (People ex rel. Folk v. Board of Police, 69 N. Y., 408; People ex rel. Cook v. Board of Police, 39 id., 506.)
The language of Judge Andrews, in People v. Petrea (92 N. Y., 143), viz.: “ Nothing could well be more unsubstantial than the alleged right asserted by the defendant under the circumstances of the case,” may aptly be applied and followed.
These views, together with the reasoning of brother Follett, lead me to concur with him and to vote for an affirmance, with fifty dollars costs against the relator.