§ 4104.Number of jurors

(See also Advisory Committee Notes preceding § 4101, under subheading “Number and selection of jurors.”). This section is adapted from the practice in the Municipal Court of the city of New York. See NYC Munic Ct Code §§ 118, 120. The practice has worked well in the Municipal Court, as is evidenced by the fact that twelve-man juries are rarely demanded. The six-man jury has a long history in New York. In 1737, the Colonial Legislature gave justices of the peace jurisdiction of causes of forty shillings or less, and provided that either plaintiff or defendant could demand a jury of six men. 2 Laws of the Colony of New York, c 656. Legislation providing for a six-man jury in cases involving small amounts was in effect on April 19, 1775. 5 Laws of the Colony of New York, c 1532. Therefore, as provided by section XXXV of the first New York State Constitution in 1777, it became part of the common law of the new state. The present Justice Court Act developed from these early statutes, and requires a six-man jury, although the parties may agree to trial by less than that number. Justice Ct Act § 230. The use of a six-man jury in the Municipal Court of the city of New York developed separately from the six-man jury in the Justice Courts of the rest of the state. In 1813, the use of a six-man jury was authorized by the Legislature in the Assistant Justices Court of the City of New York. 2 Revised Laws of 1813, c 86, §§ 85, 95. That court, eventually replaced by the Justices Court in the City of New York (later called the District Courts of the City of New York), was the predecessor of today’s Municipal Court, established by the Greater New York Charter of 1897. Laws 1897, c 378, §§ 1350 et seq. It was provided that the pre-existing procedure in the District Courts as to “trials, jurors and drawing of jurors” would be continued. However, in actions where the amount in controversy exceeded $100 (the court had jurisdiction of actions for amounts up to $500), the defendant could demand a jury of twelve. Id § 1369.

The present Municipal Court Code provides for a mandatory six-man jury in actions not exceeding $250 and an optional six-man jury in actions involving greater amounts. NYC Munic Ct Code § 120. The former provision is constitutional, since a six-man jury had been used in actions of $250 and less at the time of the enactment of the 1894 Constitution. See Knight v Campbell, 62 Barb 16 (NY Sup Ct 1872). The present constitutional guarantee of trial by jury extends to those cases in which trial by jury was used prior to the enactment of the 1894 Constitution. In re Leary’s Estate, 175 Misc 254, 23 NYS2d 13 (Sur Ct 1940), aff’d sub nom Werner v Reid, 260 App Div 1000, 24 NYS2d 383 (1st Dep’t 1941).

The optional six-man jury provided in the Municipal Court for actions exceeding $250, and provided for all civil actions in this section, is constitutional, for the Constitution provides that “a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law.” Const art 1, § 2. Under the waiver provision, it has been held that the parties may agree to a trial by eleven jurors. Neumann v Kurek, 175 Misc 238, 22 NYS2d 950 (Sup Ct 1940), affd without opinion, 264 App Div 751, 35 NYS2d 264 (1st Dep’t 1942). There appears to be no reason why the parties may not also agree to a six-man jury; indeed, the constitutionality of the Municipal Court procedure has not been challenged.

Outside New York, sixteen states and the Federal courts, in civil actions tried in courts of general jurisdiction, authorize juries consisting of fewer than twelve men upon the consent of the parties. Three other states require juries consisting of fewer than twelve men in such cases.

Six-man juries would result in a substantial saving of time and money to the state, to litigants, and to jurors and their employers, without any substantial reduction in the quality of justice. In New York county it would ease the problem of obtaining qualified jurors, which is currently acute.

Apart from the obvious saving in time due to a shortened voir dire and a saving to the state in jurors’ fees there would be a substantial saving to business firms whose employees are called for jury service. A group of representative corporations employing large numbers of New York residents were questioned as to the amount of working time lost because of jury requirements. While all of the companies indicated that they are proud to have their employees perform the important civic obligation of jury service, their responses show that the cost of jury duty to the companies, and ultimately to the public, is high. For example, a large utility employing 84,000 people in the state estimates 8,500 man-days were devoted to jury duty in 1956, costing the company an estimated $190,000. A large manufacturer employing 67,000 people in New York estimates 15,000 to 18,000 man-days per year are devoted to jury duty at a cost to the company of approximately $300,000. A somewhat smaller enterprise, with 18,000 employees, charged 1,767 man-days in a one-year period at a cost of approximately $34,800. And a bank employing 13,000 persons estimates 2,700 man-days are spent on jury duty annually at an approximate cost of $48,600.

Under this section, it is contemplated that the party first demanding a jury trial shall pay the fee, if any, for a jury of the size demanded. For those areas where a jury fee is charged, the new CPLR relating to fees prescribes— parallel to the Municipal Court practice—one fee for a jury of six and a higher fee for a jury of twelve. If a party has demanded and paid the fee for a jury of six, another party who then demands a jury of twelve must pay the difference between the fee for a jury of six and the fee for a jury of twelve. No change is made by these rules in the former law that no jury fee is payable in most areas of the state.

Add, L 1972, ch 185, § 1, eff May 28, 1972.