154 N.Y.S. 736 | N.Y. App. Div. | 1915
As stated in plaintiff’s notice of motion, the grounds upon which she sought to set aside the verdict of the jury and the judgment entered thereon were the alleged incompetency and misconduct of the jurors, and particularly that of two jurors specifically named. The affidavits in support of the motion recited statements by individual jurors made to affiants after the trial, and also observations of the demeanor of one of the jurors during the course of the trial, which it was claimed plainly indicated that from the beginning of the trial he was prejudiced in favor of the defendant and against the plaintiff. It was further asserted that another juror had served as a juryman at the term of court at which a previous trial of the action had been had (though he was not a juror who sat in that trial) which resulted in a nonsuit, of which fact he had personal knowledge. It appears that when the juror last referred to was examined before his acceptance as a juror the fact that he had known of the nonsuit had escaped his recollection. There is no suggestion that his answer at that time that he knew nothing about the case was consciously untruthful. Under the circumstances disclosed by the record, we think it was not made to appear that plaintiff’s interests were in any way prejudiced on the trial by the fact that this juror’s recollection as to his knowledge of the prior nonsuit was temporarily at fault, especially since it appears from the minutes of the last, trial, which were among the papers used on this motion, that the fact of the nonsuit was distinctly disclosed in the presence and hearing of the whole jury. In granting the order it appears that the learned justice correctly attached ho significance to the suggestion that this juror was disqualified.
The trial was finished June 5, 1912, and shortly thereafter the jurors were interviewed in plaintiff’s behalf, and, as stated by the trial justice, who afterwards at Special Term granted the motion for the order appealed from, in his opinion the per
The court at "the hearing, on motion of defendant’s attorneys, directed that the affidavits, upon which the motion was made, “be stricken out and not read in so far as they purport to contain a recital of statements made to the deponents by jurors, on the ground that any such statements are incompetent as tending* to impeach the verdict by the declarations of the jurors and as hearsay. ” In support of this ruling the court cites in his opinion the cases of People v. Birnbawn (114 App. Div. 480); Broadway Building Co. v. Saladino (81 Misc. Rep. 73) and Hanor v. Housel (128 App. Div. 801). These cases and others, including those cited therein, furnish ample authority for the ruling of the court in that regard. These statements having been eliminated from consideration, there remained in support of the motion the affidavits as to the demeanor of one juror on the trial, which it was claimed indicated a prejudice or bias against the plaintiff and her witnesses and in favor of defendant, arising from some influence, knowledge or suggestion received from a source outside of the proceedings during the trial. This was supplemented by the recollection of the court as to his observations of the demeanor of this juror during the trial. The manner of the juror during the trial is recited in the order to have been “an appearance of keen interest and approval when strong points were made for the defendant, and
The order should be reversed, with ten dollars costs and disbursements, and motion denied.
All concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied.