Walsh v. Matchett

DALY, C. J. The action was for personal injuries received from falling through a coal hole in the sidewalk, and the plaintiff had a verdict for $1,000, which she evidently deems inadequate, for she has moved to set the verdict aside upon the ground of an alleged irregular communication made to the jury by the trial judge, after the adjournment of the court, and the departure of the plaintiff and her counsel. The communication complained of was an instruction, asked for in due time by the counsel for defendant, but which the judge had overlooked in charging the requests of both sides. The omission was called to his attention before the jury retired, and while the clerk of the plaintiff’s counsel was present, who did not, however, call the court’s attention to the absence of the plaintiff’s counsel, but, to quote his affidavits, “assumed the responsibility of requesting the stenographer to note an exception upon his minutes to the charging of the jury in the absence of the counsel for the plaintiff and of the plaintiff, after the court had adjourned.” The instruction was thus given openly and publicly, in presence, as it was to be assumed, of a person representing the plaintiff, and who was plainly competent to protect her interest. A sealed verdict was ordered, and the next morning was handed in, opened, and read and recorded in presence of plaintiff’s counsel, who was then in attendance, and who Immediately thereafter moved to set it aside upon the ground of the irregularity in question. The trial judge, after a full hearing upon affidavits, granted the motion, although having a doubt as to whether the plaintiff had not waived the irregularity. The communication to the jury having been open and public, and in the presence and hearing of a representative of the plaintiff, no question of public policy, nor of the due and impartial administration of [44] justice, arises, as in the case of instructions given secretly, or without the knowledge of counsel, (Bank v. Mix, 51 N. Y. 559; Plunkett v. Appleton, 41 N. Y. Super. Ct. 169; and Bunn v. Croul, 10 Johns. 239; and similar cases;) and if it were irregular to give instructions after the adjournment of the court, (and I think it was not in this case, it being so openly done that both sides had notice,) such irregularity will not affect the verdict if it is clear that the plaintiff was not injured thereby. In Mahoney v. Decker, 18 Hun, 365, reviewing the foregoing cases, it was held that an instruction to the jury, which could not prejudice a party, would not affect the verdict, although delivered in the absence of counsel. It is clear that the instruction worked no harm to the plaintiff. It was as follows: “If the jury find from the evidence that the covering to the coal hole had been in the same condition for many years as at the time of the alleged accident, and that it had never been displaced, or any accident happened on account of it, this will be evidence that it was not defective or insufficient.” As the jury found in favor of plaintiff for $1,000 it is established that they held the coal-hole cover to be defective or insufficient, notwithstanding the instruction; and the plaintiff was not affected in any manner by it, and the irregular mode of imparting it to the jury, if any, is no ground for setting aside the verdict. People v. Flack, 57 Hun, 96, 10 N. Y. Supp. 475. It seems equally clear that the plaintiff waived the irregularity, if any there were, in failing to make objection until after the verdict was received. Her counsel was in court next morning, and present when the jury assembled and delivered their sealed verdict. The defendant’s counsel states that immediately after the verdict was rendered the plaintiff’s counsel read the affidavit of his assistant, upon which the motion for a new trial was made; and this is not denied, so that it would appear that he knew of the facts before the verdict was rendered. A party is not allowed to take the chances of a favorable verdict, and yet reserve the right to impeach it for known irregularities. Lippus v. Watch Co., (Sup.) 13 N. Y. Supp. 319; Fox v. Hazelton, 10 Pick. 277; People v. Flack, 57 Hun, 96, 10 N. Y. Supp. 475. I think, there-' fore, that the order setting aside the verdict and granting a new trial should be reversed, (1) because there was no irregularity, the instruction having been given openly and publicly to the jury in presence of a representative of plaintiff’s counsel; (2) because the instruction so given worked no injury to the plaintiff; and (3) because any irregularity in giving it was waived. Order reversed, without costs. PRYOR, J., concurs.