129 N.Y.S. 233 | N.Y. Sup. Ct. | 1911
It is a ground for a new trial that a juror was incompetent by reason of interest, relationship or otherwise, if such ground of objection was denied or concealed by the juror on proper inquiry on his voir dire examination. The affidavit of Hamilton Ward states that he asked juror Butler on his voir dire examination whether he knew Mr. Penny who is both president and attorney for the defendant; that the said Butler replied that he knew Mr. Penny slightly — about the same as he knew him, Ward. Mr. Ward also states that he had no acquaintance with the said Butler and did not know his name when he appeared upon the panel, although he might have met him in a casual way, and that such statement of .the said Butler as to the slightness of his acquaintance with the said Penny was an inducing cause for allowing said Butler to sit as a juror. The plaintiff in an affidavit says: “Hamilton Ward, deponent’s counsel herein, asked said Butler if he knew Mr. Penny, the president of, and one of the attorneys for, the defendant herein; that said Butler replied that he only knew Mr. Penny slightly; that he did not know said Penny any better than he knew said Ward.” . Andrew B. Grilfillan, the attorney for the plaintiff, in an affidavit says: “ That said Butler stated, in answer to questions of Hamilton Ward, that he belonged to an organization that said Penny belonged to and in that way he knew Mr. Penny, but that he knew him only slightly; that he did not know him any better than he knew said Ward; that the fact that he knew Mr. Penny would make no difference in this case and that of course it ought not to.” It is further stated in the affidavit of plaintiff’s attorney, upon information and belief, that the statements above quoted as having been made by juror Butler to
Upon the assumption that the statements above set forth were made by juror Butler to plaintiff’s counsel, and that the facts exist as stated in the affidavit of plaintiff’s attorney, the question is presented, whether the juror denied or concealed such relations with Mr. Penny as are established in the affidavit of Mr. Gilfillan, from Mr. Ward, upon his voir dire examination, upon proper inquiry. It is to be observed that juror Butler did state that he belonged to an organization to which Mr. Penny belonged, and that in that way he knew Mr. Penny; that he knew Mr. Penny slightly, about the same as he knew Mr. Ward. It cannot be said that the juror denied or concealed the fact that he and Mr. Penny, from 1893 to 1901, were both active sitting officers in a Masonic lodge. When juror Butlor stated that he belonged to the same organization of which Mr. Penny was a member, it would seem that it then became the subject of proper inquiry for more information as to the relations between the juror and Mr. Penny. It does not appear whether the subject of membership in the organization was volunteered by the juror or developed by plaintiff’s counsel. It is quite clear that an inquiry as to what organization was referred to would have developed its name and character. The fact that Mr. Penny and the juror Butler were sitting officers in the same lodge for years is not proof that his acquaintance , with Mr. Penny was of such a degree of in
The alleged misconduct of jurors in viewing the premises, and the alleged occurrences in the jury room complained of, have not been established by competent evidence. It is well settled by abundant authority that affidavits of jurors will not be received to impeach their verdict; they are only competent to sustain a verdict. Webber v. Reynolds, 32 App. Div. 248; Haight v. City of Elmira, 42 id. 391; Buffalo Structural Co. v. Dickinson, 98 id. 355; Gans v. Metropolitan St. R. Co., 84 N. Y. Supp. 914; Thomas v. Chapman, 45 Barb. 98; Dittman v. City of New York, 58 Misc. Rep. 52; Hanor v. Housel, 128 App. Div, 801; Gregory v. Bijou Theater Co., 138 id. 590; Zint v. Mulligan, 140 id. 230.
The jury was charged that the placing of the bundles of newspapers in the street by the defendant created a nuisance, and that the defendant became liable to plaintiff for his in
Motion denied.