Opinion
July Term, 1897.
Frank Sullivan Smith, for the appellant.
William R. Wilder, for the respondent.
Present — VAN BRUNT, P.J., RUMSEY, PATTERSON, INGRAHAM and PARKER, JJ.
Upon an examination of the record in this case it appears that the trial brief of the plaintiff's counsel got into the jury room, together with the exhibits in the action, entirely without the knowledge of the counsel and purely by accident. It further appears from the affidavits of the jurors that none of them either read it or were acquainted with its contents, and that, therefore, it could not have had any influence upon their verdict.
The case of O'Brien v. The Merchants' Fire Ins. Co. (38 N Y Super. Ct. 482) is cited by the counsel for the respondent as a case practically on all fours with the case at bar, the counsel stating that none other can be cited that is more apropos. Some extracts are then given from the opinion, but certain features which are alluded to therein, and which clearly distinguish the case cited from the one at bar, seem to be carefully excluded. It appeared from this opinion that two of the jurors stated to the plaintiff's counsel that they had read the paper in question in the jury room, and, apparently, the only affidavit against this proposition was that of the juryman who carried the books into the jury room. He stated that he laid the books on the table in the room, and that they remained there during the entire deliberations of the jury, and that no one, so far as he knew or believed, examined either of the books or their contents, or saw the paper inside the small book, and that neither the paper nor its contents were alluded to in the discussion. Here the extract stops. The opinion, however, continues: "This may be quite correct, and yet it fails to show that the paper was not seen or read by some of the jury. His affidavit simply shows that he failed to observe any of the jury reading it." In the case at bar, every juryman has sworn that he had not read the paper and did not know its contents. Then the colloquy which occurred between the plaintiff's counsel and the foreman of the jury appears, in which certain statements of some other of the jurors were given, and the court say: "Even if weight is attached to this conversation after the verdict, it fails to show that the paper was not read by any of the jury. It simply shows that two or three of the jury stated, in the presence of the others, that the paper was not read by any juror" — a case entirely different from the one at bar. In that case the paper was seen by some, and, perhaps, by all, of the jurymen, and the presumption seems to be that it was read wholly or in part, or referred to by some one of those who saw it. It seems to us that it would be difficult to find two cases upon the same subject which were so radically different in all their essential features.
The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.