Ford v. O'Byrne

Per Curiam.

This is an appeal from an order denying the application of Franklin Ford for a peremptory order of mandamus directing the commissioner of jurors to replace his name upon the list of jurors for the county of New York, from which the commissioner had stricken it.

The qualifications of a juror in New York county are set forth in section 598 of the Judiciary Law. The only one applicable to the present situation is that he must be “ intelligent.” By section 601 the commissioner of jurors is made the sole judge of the qualifications of trial jurors, subject to the right of challenge at a particular trial. By section 604 it is made the duty of the commissioner of jurors to strike from the list the name of a person who is found by him to be disqualified and he must record his reason for such action. By section 13 of the Civil Rights Law it is provided that no citizen otherwise qualified shall be disqualified as a juror on account of “ creed.” The record does not disclose what reason the commissioner of jurors entered for striking the name of Mr. Ford from his list. The only possible basis for holding Ford disqualified was that he was not “ intelligent.” The facts set forth in the answer of the commissioner of jurors made out prima facie that Ford was a man of violent religious prejudices. The question for us is whether this justified the commissioner in finding him, not “ intelligent.” In view of the above-quoted prohibition in the Civil Rights Law against disqualification by reason of creed, we think the connotation of the word “ intelligent ” should be narrowed to exclude this interpretation. The court should be astute to preserve the integrity of this provision of the Civil Rights Law and should not approve a definition of intelligence which would exclude a man from jury service by reason of his beliefs. “ Intelligent ” as used in the Judiciary Law means possessed of ordinary information and reasoning faculty.

A man cannot be removed from the jury list merely because of bigotry that runs counter to fundamentals of religious toleration and freedom. American liberty extends the protection of the law even to those who are false to its principles.

For these reasons the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion for a peremptory mandamus granted, with ten dollars costs.

Present — Dowling, P. J., Finch, McAvoy, 0’MALLEY™and Proskauer, JJ.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Settle order on notice.