45 N.Y.S. 404 | N.Y. App. Div. | 1897
These appeals were argued together, and it will be most convenient to consider and decide them together.
The action was brought to recover $600 damages for the alleged conversion of an engine. The defense was á general denial. The case was tried in Brooklyn before Mr. Justice Osborne and a jury. After the adjournment' of the court on the first day of the trial, the foreman of the jury was observed in conversation with the plaintiff. The attorney for the defendants called the. attention of Mr. Justice Osborne to this fact, whereupon the judge told the juror that he was guilty of a gross impropriety, and asked him what he was' saying to the plaintiff, to which the juryman responded : “ I just said it was a long sit to sit here all day.” The next morning the defendants’ attorney made a formal motion for leave to withdraw-a juror and for a new trial on- account of the foreman’s misconduct, and the presiding judge thereupon put a number of questions to the juror himself, to the plaintiff, and to one of the court officers, as to what had happened on the afternoon previous. The foreman declared that lie never saw the plaintiff before this case; that he did not recognize him as the plaintiff, or he would not have spoken to him, and that he simply said it was a long day to sit in court and his back ached from sitting there. The plaintiff’, on the other- hand, denied having spoken to the juror, and said the juror did not speak to him. The court officer did not notice that anything passed between them. . At the conclusion of his investigation, Judge Osborne said he did not think that there had been any such communication between the foreman and the plaintiff as-might be deemed calculated in any degree to impair the verdict which might be rendered by the jury, and he directed the trial to proceed. - The jury subsequently rendered a verdict of $400 for the plaintiff.
The plaintiff’s counsel objected that the motion was required by section 1002 of the Code of Civil Procedure to be heard at a Special Term held by the judge who presided at the trial and also that it must be noticed within the time limited by that section. These objections were properly overruled. They apply only where the motion “ is founded upon an allegation of error in a finding of fact or ruling upon the law, made by, the judge upon the trial.” A motion based upon a juror’s misconduct is not subject to any such restrictions. The correct practice is to make the application at Special Term. (Moore v. N. Y. Elev. R. R. Co., 15 Daly, 506; Paulitsch v. N. Y. C. & H. R. R. R. Co., 50 N. Y. Super. Ct. 241.) It is always proper, however, to call the attention of the trial judge to the objectionable occurrence, if ascertained before the close of the case, as in that event he may see fit to allow a juror to be withdrawn. But at Special Term any judge may hear a motion for a new trial on this ground. We are of the opinion, therefore, that the application in the present case was seasonably made in the right place and that Mr. Justice Gaynor had jurisdiction to hear it.
We also think that' he decided correctly, and we agree with him that, in the light of all the proof, the act of the juryman appears at most to have been an inadvertent indiscretion. There is no reason to believe that it had the slightest effect upon the verdict. This view accords with what was evidently the impression made upon the "mind of the trial judge, who saw the parties at the time and who carefully investigated the occurrence by a personal examination of those concerned in it, reaching the conclusion that no wrong had really been done. To that conclusion we think great weight should be given by an appellate tribunal.
Upon the appeal from the. judgment the only point pressed upon our attention relates to the measure of damages. The engine which the defendants converted had been left by the plaintiff in a building on Montrose avenue in the city of Brooklyn with the permission of the owner of the place. The proof does not show any relation
The verdict is assailed a,s excessive, but while we should have been better satisfied with a smaller recovery we cannot shy that there is not sufficient evidence to sustain the jury’s estimate of the value of the converted engine.
The judgment and the orders appealed from must be affirmed-.
All concurred, except Goodrich, P. J., not sitting. ■
Judgment and order denying motion for new trial on the minutes affirmed, with costs. Order denying motion for new trial on the ground of misconduct of juror affirmed, with ten dollars costs and disbursements.