Horrman v. Neuman

Conlan, J. Appeal from an order denying a motion for a new trial. It appears from the printed case that after the jury had retired to deliberate one of the number sent by an officer in charge two questions to the court asking further information on matters involved in the case. The court indorsed on the paper containing the questions : “That he had no further charge to make than as already charged,” and caused it to he returned to the jury. This was in the absence of counsel, and it is claimed on the part of the ' appellant that this was an error for which the judgment should be reversed. We do not think the point contended for is sustained by the authorities cited. In Taylor v. Betsford, 13 Johns. 487, the justice went into the room with the jury at their request, and privately and apart from the parties answered questions put' to him by the jury. In Watertown Bank & Loan, Co. v. Mix, 51 N. Y. 558, the court caused to be answered the inquiry, “ Whether the witness Moffat proved positively on cross-examination that [450] Hains did not leave that money on the counter,” by informing them that “ no such question was asked.” This was in the absence of the plaintiffs and their counsel. In High v. Chick, 81 Hun, 100, the justice went into the' jury room against the protest of counsel for the defendant and closed the door behind him, and while there answered questions as to the effect of the verdict. It will be seen that in all.these cases there was some actual communication between the court and jury bearing on the matter submitted to them. In the case at bar there was no communication on the subject of the inquiry. The most that can be said is, that the court caused the information to be sent to the jury that he declined to communicate. It is not incumbent on a party claiming an irregularity to show that the act complained of was prejudicial, but rather for the person claiming the regularity of the proceeding to show that it was not; but where it appears affirmatively that it would not have affected the result it is not a sufficient reason for directing a new trial. Mahoney v. Decker, 18 Hun, 365. The refusal of the court to instruct the jury in the present case was within the exercise of sound discretion, and not such an irregularity as to warrant the reversal of the judgment. Order affirmed, with costs.. Dotty, J.,. concurs. Order affirmed, with costs.