75 N.Y.S. 735 | New York County Courts | 1901
The justice, in his return upon this appeal, sets forth the following, viz.:
“That after deliberating for some time the jury called for the justice; the door of the jury room was then opened by the constable, who was present; neither the plaintiff nor defendant nor their counsel was notified, and neither of them was present, nor did they, or either of them, consent; then the foreman of the jury asked me if the costs could be divided and placed on both parties; I, in reply, said to him, ‘No, that the costs followed judgment always in a civil action,’ and I then withdrew.”
The jury thereafter, as also appears by this return, rendered a verdict in favor of the plaintiff, on which the justice entered the judgment from which the defendant appeals to this court, and asks a reversal upon the sole ground that the justice committed an error in communicating with the jury in the absence of the parties and their counsel, and without their consent.
It is a well-settled rule of law that the justice may give instructions to the jury after the cause has been submitted, if the parties to the action consent. Henlow’ v. Leonard, 7 Johns. 200; Whitney v. Crim, 1 Hill, 61; Hancock v. Salmon, 8 Barb. 564; Lasher v. Curry, 102 N. Y. St. Rep. 845, 68 N. Y. Supp. 845, and cases there cited. In this last case cited, which was an appeal to this court, and subsequently affirmed by the appellate division (105 N. Y. St. Rep. 1140, 71 N. Y. Supp. 1140), the judgment was upheld upon the point here involved, for the reason that it could be inferred from what occurred at the time the magistrate entered the jury room and gave in
In the light of these cases (and others that might be added), as well as upon sound principles, it must be held that the justice erred in communicating with the jury in the absence of the parties to the action and without their consent.
The judgment appealed from must therefore be reversed, with costs, and an order is directed to be made accordingly.