
    Buffalo Structural Steel Company, Respondent, v. Charles E. Dickinson, Appellant.
    
      Trial—misconduct of two jurors in viewing premises to which the litigation relates — it does not authorize the court to direct that all the jurors view the premises — when a new trial should be granted.
    
    Jurors who, during the progress of the trial, of their own motion, visit and inspect the premises which are the subject of the litigation, are guilty of misconduct, as such an examination may put the jurors in possession of facts which, although incompetent, would have a potential influence upon their decision, and the parties would have no opportunity to explain such facts or to counteract such improper influence.
    A jury trial is a public proceeding as well in respect to the production of proof as to the instruction of the jury by the judge. The parties have a right to be heard in respect to everything transacted and to bring in review all the proceedings of the trial.
    It is not every act of misconduct committed by jurors during the trial that will make it necessary for the court to suspend the trial, or, in case the trial is completed, justify the granting of a motion for a new trial; if it can be seen that the misconduct was inadvertent and did not result in harm to the complaining party, the trial may proceed, or the verdict, if one has been rendered, may be permitted to stand.
    The question as to what course shall be pursued, in the event of misconduct on the part of the jurors, rests largely in the discretion of the trial judge upon a consideration of all the circumstances.
    The fact that the Legislature, by section 1659 of the Code of Civil Procedure, expressly confers power upon the judge presiding at the trial of an action for waste to direct an inspection of the premises in question by the jury, clearly indicates that it was not intended that such power should exist in other civil actions.
    
      Two members oí the jury impaneled on the trial of an action, of their own initiative, visited a building, a claim for the construction of which was involved in the litigation. This fact having appeared during the defendant’s opening, the court, at the close thereof, upon its own motion, questioned the two jurors as to their visit and was informed by them that their purpose in inspecting the building was to enable them to understand and appreciate the evidence given by the respective parties and that they were entirely impartial as between such parties. The plaintiff’s counsel then, at the suggestion of the court, made a motion for an inspection of the premises by the entire jury, which motion was granted, over the defendant’s objection. The counsel for the respective parties were given permission to accompany the jury, but the defendant’s counsel did not avail themselves of such permission. Upon the return of the jury into court the defendant’s counsel objected to any further proceedings being taken in the case upon the ground of the misconduct of the jurors. The objection was overruled and the trial proceeded, resulting in a verdict for the plaintiff.
    Upon an appeal from an order denying the defendant’s motion for a new trial, made upon the ground of the alleged misconduct of the two jurors who first visited the premises, it was
    
      Held, that the action of the two jurors in inspecting the premises of their own motion constituted misconduct, but that the trial judge, in the exercise of his discretion, would have been justified in proceeding with the trial, notwithstanding such misconduct;
    That the court, however, had no power to direct a view of the premises by the entire jury, and that as by so doing he had aggravated the original misconduct of the two jurors, such misconduct was properly made the basis of a motion for a new trial.
    Appeal by the defendant, Charles E. Dickinson, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Niagara on the 17th day of February, 1904, denying the defendant’s motion for a new trial made upon the ground that two of the jurors before whom the case was tried were guilty of misconduct during the trial which was prejudicial to the defendant.
    The action was commenced on the 15th day of February, 1902, to recover $5,339.79, with interest thereon from January 1, 1902, the balance which the plaintiff claimed was due and owing to it from the defendant for furnishing and erecting the structural steel and iron required in the reconstruction of a certain factory building in the city of Lockport, N. Y., under a contract by which the plaintiff obligated itself to complete the work specified on or before the expiration of fourteen weeks from July 27,1901, the date of the contract.
    
      The plaintiff alleged that it furnished the material and did the work called for by the contract, admitted that it was not completed within the time specified, but alleged that such result was caused solely through the fault of the defendant, and that except for such fault it would have fully complied with the terms, of the agreement. The defendant, by his answer, admitted the making of the contract and its terms substantially as alleged in the complaint, denied that the failure of the plaintiff to complete the work within the prescribed time was caused by any fault or omission on his part, and alleged that through the neglect and fault of the plaintiff in that regard he sustained damage in the sum of $3,000, which he duly pleaded as a counterclaim.
    The issues thus framed came on for trial before the court and a jury. About noon of the third day of the trial the plaintiff closed its evidence and rested, defendant’s counsel commenced his opening address to the jury, and while detailing the manner in which certain parts of the building were constructed, was interrupted by one of the jurors, who stated in substance that he knew what the construction was; that he had visited the building that morning and examined it. At the close of the opening the court, upon its own motion, called the juror to the witness stand and he testified that on the morning of that day he and another juror visited the premises and made a thorough examination of the structure, which at the time, concededly, was not in the same condition as when the plaintiff finished the work. The other juror was also examined by the court and testified substantially as did the first one examined. Both stated that their purpose in inspecting the building was to enable them to understand and appreciate the evidence given by the respective parties, and that they were entirely impartial as between them. The court thereupon suggested to plaintiff’s counsel that if a motion was made for an inspection of the premises by the entire jury it would be granted. Such motion was made, and notwithstanding defendant’s objections, the entire jury was put in the custody of officers and directed to inspect the building. Permission was given to counsel to accompany the jury, but defendant’s counsel stated that they would take no part in it. The jury accompanied by the officers did inspect the building and upon their return into court defendant’s counsel objected to any further proceedings being taken in the case upon the ground of the misconduct of the jurors. The objection was overruled, an exception duly taken and the trial proceeded.
    In his charge the court said : “ The Court has permitted you to go down and look over these premises. That, of course, was not for the purpose of permitting any observation that you made there to interfere with any of the evidence given in this case, because you are bound by the evidence given here. The sole purpose of permitting this inspection was, in the language of the Court of Appeals of this State, to enable the jurors to more accurately understand and more fully appreciate the testimony of the witnesses given upon this trial. And, of course, the view which you made of these premises will be limited strictly to the purposes stated, namely, to enable you to understand and appreciate the testimony given by the witnesses here.”
    The jury rendered a verdict in favor of the plaintiff for $4,791.66, and judgment was thereupon entered against the defendant for that amount, besides costs.
    
      Eugene Bartlett and A. C. McCall, for the appellant.
    
      Moses Shire, for the respondent.
   McLennan, P. J.:

It is clearly misconduct on the part of jurors, during the progress of a trial, of their own motion to visit and inspect premises which are the subject of the litigation. Such an examination may put them in possession of facts which, although incompetent, would have a potential inuflence upon their decision and the parties would have no opportunity to explain such facts or to counteract such improper influence. By such conduct the jurors are in effect obtaining evidence, the nature or importance of which it is impossible for the parties to know. A jury trial is a public proceeding, as well in respect to the production of proof as to the instruction of the jury by the judge. The parties have a right to be heard in respect to everything transacted and to bring in review all the proceedings at the trial. (Watertown Bank & Loan Co, v. Mix, 51 N. Y. 558, 560.) .

“ It is the policy of the law to watch over the deliberations of the jury, and to guard them from all impressions and influences in respect to the issues involved not derived from a trial in open court, in the presence of the parties and their counsel, where ample opportunity is given to object to the admission of any evidence or comments not sanctioned by the law.” (Mitchell v. Carter, 14 Hun, 451.)

Not every act of misconduct by a juror during a trial, however, makes it necessary to suspend the trial, or in case it is completed to grant a motion for a new trial. If it can be seen that the misconduct was inadvertent and did not result in harm to the complaining party, the trial may proceed or the verdict, if one is rendered, may be permitted to stand. (Haight v. City of Elmira, 42 App. Div. 391.)

In that case it conclusively appeared that the inspection by certain members of the jury of the premises in question disclosed only facts which were not disputed, and it was held that the trial judge properly determined that the conceded misconduct did not injuriously affect the interests of the defendant. (City of Indianapolis v. Scott, 72 Ind. 196.)

In such cases the judge must determine whether the misconduct complained of is of such a character as, considering all the circumstances, would injuriously affect the parties’ interests ; and whether to proceed with or end the trial or to grant a new trial in case a verdict is rendered, must rest very largely in the discretion of the judge presiding. He knows the state of the proofs, the exact issues involved and has the advantage of hearing from the offending juror what prompted his act and to some extent its effect upon him.

In the case at bar, after a careful examination of the record before us, we are not prepared to say that the court would not have been justified in holding that the misconduct of the two jurors referred to did not injuriously affect the interests of the defendant and in proceeding with the trial if nothing further had occurred. What had been done by the two jurors was clearly inadvertent; no one was really blamable; simply a mistake had been made by two apparently honest and conscientious jurymen, and if they had been instructed to disregard any fact which they learned by the inspection made by them, we think under the circumstances the defendant would not have had just ground for complaint. The trial court, however, desirous of correcting the effect of the misconduct complained of, against the defendant’s earnest protest, directed the entire jury to view and inspect the structure which was the subject of controversy between the parties. This, we think, the court had no power to do, and that such action, which was then and there duly objected to by the defendant, constituted such error as required the motion for a new trial to be granted.

The only authority for directing a jury to view and inspect premises during a trial in a civil action is found in section 1659 of the Code of Civil Procedure. That section relates only to “ an action for waste,” and is not applicable to the case at bar. If such direction was proper in this case then such direction may be made upon the trial of any action where the condition or situation of premises or the structures thereon are involved. The fact that the Legislature by the section of the Code of Civil Procedure referred to conferred the power upon the court to “ direct a view by the jury ” in an “ action for waste,” clearly indicates that it was not intended that such power should exist in other cases. We have failed to find any adjudicated case which holds even inferentially that upon the trial of a civil action other than for “waste” the court has power to “ direct a view by the jury.”

In Moore v. N. Y. Elevated R. R. Co. (24 Abb. N. C. 77; 15 Daly, 506), cited by respondent’s counsel, the defendant’s counsel suggested at the close of the day’s trial that the jurors be permitted to visit the premises. Plaintiff’s counsel was present and made no objection ; the presiding justice gave the permission provided they all went together. Not all the jurors understood the directions given by the judge, and only five of them visited the premises. Upon returning to court the following morning the jurors were reprimanded for disobeying the direction of the court. The trial then proceeded without any objection on the part of plaintiff’s counsel, and it was held that the plaintiff had waived the right to make the alleged misconduct of the jury the ground of a motion for a new trial.

The case of People v. Thorn (156 N. Y. 286) was a criminal case and is governed by section 411 of the Code of Criminal Procedure and the decision has no application to the questions involved upon this appeal.

We have not overlooked the fact that the motion for a new trial. was made upon the ground of the misconduct of two of the jurors and not upon the ground that the entire jury inspected the premises pursuant to the direction of the court, nor that we have suggested that under the circumstances disclosed by the record the trial judge in the exercise of his discretion would have been justified in proceeding with the trial, notwithstanding the misconduct of the two jurors referred to, upon giving them proper instructions in the premises; that he would thereby have remedied the effect of such misconduct. The misconduct, however, was not rectified by the court in directing the whole panel to view the premises, but instead was emphasized, and, therefore, was properly made the ground of the motion for a new trial.

It follows that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion for a new trial granted, with ten dollars costs.

All concurred; Spring, J., in result only.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  