Smith v. Smith

57 N.Y.S. 774 | N.Y. Sup. Ct. | 1899

McAdam, J.

The action is for divorce, on the ground of adul- • ,'tery, and the answer contains recriminatory charges. The issues .were settled for - trial by jury.- Code, '§ 970, At the' trial the jury disagreed. : As to-one of the charges, made by the, plaintiff, the. court directed the jury -to find for-the defendant, the evidence being insufficient to warrant any other.finding.. The other, charges were submitted,, and the; jury having disagreed, nothing was ad'jiidicated. It was,, in short,, a mistrial. The rule is, that'the jury cannot find on one'issue'and disagree on another; the findings- must be altogether- or not-at all,, and-the; court will not. receive the finding of the jury on'one issue, and- discharge the-jury as to the other. -Berry v. Waller, 1 Overt. 186;. and see "Thompson’s Trials;-§'§ 265.0, -2,657-.' There- is no- such thing'in-practice as: verdicts on the in,stallment plan or alternate findings by successive juries on different issues in the same case. The verdict as rendered must be sufficient for all the purposes of the case, or it is no verdict. See Parker v. Laney, 58 N. Y., at p. 472. There can be but one final judgment in an action, and the verdict must be sufficient to authorize it. This is the rule in regard to special verdicts; and they are analogous to verdicts on framed issues, which now take the place of feigned issues. Vermilyea v. Palmer, 52 N. Y. 471; Kintz v. McNeal, 1 Den., at p. 438; Carr v. Carr, 52 N. Y. 251; Casey v. Dwyre, 15 Hun, 153. When, then, the verdict is so imperfect that no judgment can be rendered upon it, and it cannot be cured by the exercise by the court of its power of amendment, the practice at common law is to award a venire de novo. Thompson’s Trials, § 2657. When a jury disagree the directions given on the trial affect that trial only, and not a subsequent one, wherein there may be different evidence. The defendant now moves for an order declaring that the court directed a verdict for the defendant on one of the issues, and that the remaining issues only are to be considered on the new trial. This practice is unauthorized. There may be additional evidence on the new trial which may require a different finding thereat on the different issues. “ Sufficient unto the day is the evil thereof.” No verdict having been received or recorded, the new trial must, of course, proceed de novo- as to all the issues in the action, and the plaintiff may take an order to that effect.

Ordered accordingly.