8 Barb. 564 | N.Y. Sup. Ct. | 1850
The only ground relied on for reversing the judgment in this cause, is the ailedged irregularity of the justice, in entering the jury room and reading the testimony of a witness to the jury in the absence of the parties. The justice in the first instance returned that he went into the jury room, by the consent of the defendants or their counsel; and that when he had entered, the jury wanted him to read to them the testimony of a witness by the name of Gardner, and he consented. On a further return he states the facts of his going into the jury room with more particularity. He says that “ while the jury were deliberating on their verdict the constable came to the door and asked for the justice, remarking that the jury wanted to see him; that Melville F. Stevens, one of the counsel for the defendants, was standing by the door, and that Lewis E. Loomis [one of the defendants] was standing by his side. That as the constable came to the door as aforesaid, I was seated at a short distance off, and the said Stevens spoke: ‘ Esquire, the jury want to see you.’ I hesitated about going in; and thereupon the said Lewis E. Loomis put his hand on my shoulder, and said again, ‘ Esquire, the jury want to see you.’ I went into the jury room as stated in my former return.” Upon this return, the only question is whether a consent to go into the jury room includes a consent to read the testimony of a witness.
In the case of Taylor v. Betsford, (13 John. 487,) it was held that a consent to enter and answer questions proposed by the jury, will not be inferred from the knowledge and silence of the parties, but that the consent must be expressly given. In Thayer v. Van Vleet, (5 John. 111,) it is decided that going in and answering an inquiry of the jury whether they could add any thing to the plaintiff’s damages, in the negative, was not an error for which the judgment would, be reversed, and that the consent of parties might be inferred. In Bunn v. Croul, (10
Judgment affirmed.