29 A.D. 350 | N.Y. App. Div. | 1898
This action was tried at the Trial Term of the court with a jury. The jury rendered a verdict for §18,000 in favor of the defendant against the plaintiff, and that verdict was duly recorded and the jury discharged. The plaintiff then made a motion for a new trial on the judge’s minutes under section 999 of the Code, which was duly denied and an order entered. Subsequently, upon affidavits of the plaintiff’s attorney and several of the jurors, a motion was made for a new trial, or to reduce the verdict to the sum of $5,654.24, upon the ground that" the jury had made a mistake in announcing their verdict as $18,000 in favor of the defend-, ant and against the plaintiff; that the jury meant to allow the defendant the sum of $18,000 upon the account as between the plaintiff and the defendant, and that this amount of $18,000 should be reduced by deducting therefrom the amount claimed by the plaintiff as due under the certifícate given by the engineers.
By section 997 of the Code it is provided that, -when a party intends to move for a new trial of an issue of fact, he must, except as otherwise provided by law, make a case and procure the same to be settled and signed by the judge by or before whom the action was tried; and by section 998 of the Code it is provided that it is not necessary to make a case, for the purpose of moving for a new trial, upon the minutes of the judge who presided at the trial "by a jury, or upon an allegation of irregularity or surprise. As no case was made and settled by the moving party, this motion could only be entertained upon the ground of irregularity or surprise, the motion for a new trial upon the judge’s minute having been made and denied.
Counsel for the appellant expressly states that this is not an application to impeach a verdict for mistake or error in respect to the merits, nor to prove irregularity or misconduct on the part of a juror or his fellows. What the appellant seeks to do is to impeach
We think the court below correctly denied the plaintiff’s motion either for a new trial or to correct the verdict. A motion to correct the verdict should be made to the court before whom the case was tried. A verdict once entered by the jury and recorded in court becomes-the verdict of the court, and any motion to correct that verdict must be made to the court in which the verdict was recorded.. There is no express provision that gives the Special Term of the Supreme Court power to change the record of the Trial Term, and 1 do not know where such power is given to it. Assuming, however, that the motion was properly made at Special Term, we think it was properly denied. The rule before referred to, that affidavits of jurors are not received to impeach their verdict, either for misconduct or mistake, applies as well to a motion to correct a verdict as to a motion to set it aside and direct a new trial.
The appellant relies upon several cases in which clerical mistakes in recording a verdict actually rendered by a jury, or in the amount
We think this case comes within the rule in which the affidavits of jurors cannot be received to impeach their verdict, and that.
The order appealed from should be affirmed, with costs.
Van Brunt, P. J., Patterson, O'Brien and McLaughlih, JJ., concurred.
Order affirmed, with costs.