7 N.Y.S. 184 | N.Y. Sup. Ct. | 1889
On account of the death of the justice of the peace before a return was made by him, there exists a lack of the details of the evidence given before him; yet enough is disclosed to show that it was a fair question of fact for the jury whether the wages of the plaintiff were to be paid by the defendant or by one Geiger. Under these circumstances, the verdict, if uninfluenced by other matters than the evidence, must be deemed conclusive. . A reversal was also claimed in the county court, and is insisted upon here, on the ground of the misconduct of the justice of the peace in conferring with the jury after they had retired to deliberate upon their verdict. Three of the six jurors, and the constable who was in charge of them, have made affidavits to the effect that after the jury had retired for deliberation the justice entered their room, and had a conversation with them about the case, in the absence of parties and counsel, and without their consent. The jury had then been out nearly four hours. Eliminating from the case the affidavits of the jurors upon the ground taken by the respondent’s counsel, that they cannot be heard to impeach the integrity of their own verdict, but without giving our assent to the correctness of the proposition as applied to the facts of this case, there remains the uncontradicted affidavit of the constable, as follows: “That the said jury failed to agree for nearly four hours, and the foreman of the jury asked deponent to bring in the justice of the peace, and repeated the request once or twice. Deponent thereupon went out and found the justice, William Peacock, and the said Peacock then went into the room with deponent and the jury. That neither of the parties to the action, or either of their counsel, were present, but that the justice came alone, with deponent and the jury. After Peacock came into the room the foreman of the jury stated to