31 Misc. 587 | New York County Courts | 1900
The appellant raises several objections to the proceedings in Justice’s Court, but I consider none of them tenable except the objection that after the case was submitted the justice entered the jury room, at the request of the jury, but in the absence of the appellant and without his knowledge or consent, and answered a question respecting the- effect of a verdict. The justice says in his affidavit, which is treated as a part of the return, that he was only asked if a verdict for plaintiff would carry costs, to which he replied “ Yes”; and he thereupon left the jury room.
The answer was correct and it is not apparent that any prejudice came to the appellant from the incident. It would seem, however, that the latest decisions are that if the justice goes to the jury room and communicates privately with the jury about the case without the consent of the parties, the judgment thereafter rendered must he set aside, and it is not necessary to show that anything was said unfavorable to the appellant. This rule seems to be founded upon considerations of public policy, and in its application the court will not inquire whether in the particular instance under review the defeated party was injured. It is said that if private communication were, permitted between judge and jury, proof of what took place would necessarily have to be obtained by the defeated party from those who would he naturally reluctant to admit their own wrongdoing, and fairness to litigants can best be assured if no opportunity is afforded for unfair dealing and all intercourse between judge and jury concerning the case he of necessity in public. This rigid rule in particular instances may work hardship, hut in the majority of cases it is salutary.
In Taylor v. Bettsford, 13 Johns. 487, in reversing a judgment
And these cases are cited with approval upon this point in Kehrley v. Shafer, 92 Hun, 196.
The well-known probity and fairness of the justice who tried this, case furnishes assurance that in this particular instance there was no intention.to influence the jury, and the respondent offered to read the affidavits of the jurors that they were not prejudiced by the interview. But I see no way to sustain the judgment under the precedents cited, and, therefore, the judgment is reversed.
Judgment reversed.