
    Abraham Salemon, Respondent, v. The New York City Railway Company, Appellant.
    (Supreme Court, Appellate Term,
    November, 1907.)
    Instructions — Time and manner of giving, etc.— After jury announce that they have agreed.
    Until the jury is actually discharged, they may correct or alter their verdict, either at their own instance or that of the court; and they may be sent back, after giving their verdict and before it is recorded, not only to correct a mistake in form, or to make that plain which was obscure, but to alter the verdict in substance if they so determine and agree.
    Where, in an action against a street railway company to recover damages for personal injuries, the jury come in and announce that they have found a verdict for the plaintiff as they have his testimony but no testimony from the defendant excusing the conductor, and the court thereupon, at plaintiff’s request, instructs them that the failure of the defendant to offer evidence does not relieve the plaintiff of the burden of proving his case by a fair preponderance of evidence and otherwise correctly instructs them on that subject and sends them out a second time, no error is thereby committed.
    Appeal by the defendant from a judgment in favor of the plaintiff rendered in the Municipal Court of the city of Mew York, fifth district, borough of Manhattan.
    William H. Weaver, for appellant.
    Morris Meyers, for respondent.
   Per Curiam.

This is an accident case. The defendant does not raise, on this appeal from a judgment in favor of the plaintiff, any question of negligence or contributory negligence, but bases its appeal solely on the ground that the court erred in sending the jury out a second time. The defendant introduced no evidence, except to show that it had

received no report of the accident. After the court had made its charge, to which no exception was taken, and the jury had retired for the first time, they returned and the foreman made the following statement: “As we have the testimony by the plaintiff as to what happened to him, we find that there is no evidence from the company, that there was something the matter with the conductor, or that he did not hear, or anything, and we find a verdict of $400.” The court then asked: “ For the plaintiff?” To which the foreman replied: “ Yes, sir.” The jury was then polled and each answered that his verdict was for $400 for the plaintiff. The defendant then moved to set aside the verdict on the ground that “ they have said that they gave- this verdict because there is no evidence from the railroad company.” The plaintiff then moved to have the jury sent back to the jury room, with instructions that the fact that the defendant has put in no defense does not relieve the plaintiff from the necessity of proving his case by a. fair preponderance of evidence.” The court then said to the jury: “ If you found a verdict for the plaintiff because there was no testimony offered by the railroad company in regard to the accident, the conductor or the car, then your verdict must be set aside by the court. You must find a verdict for the plaintiff or defendant, regardless of the absence of testimony on the part of the railroad company, in regard to the accident;” and the court then went on and gave instructions as to the law of negligence, applicable to the case, and sent the jury out a second time. The defendant objected to this second sending out of the jury and excepted to the court’s ruling in that regard. . The jury came in a second time and announced a verdict for $400 for plaintiff. The conduct of the court in sending the jury out a second time seems to have been proper under the circumstances. Until the jury is actually discharged, they may correct or alter their verdict, either at their own instance or that of the court. Rogan v. Mullins, 22 App. Div. 117-119; Warner v. N. Y. C. & H. R. R. R. Co., 52 N. Y. 438. They may be sent back,.after giving their verdict and before it is recorded, not only to correct a mistake in form, or to make that plain which was obscure, but to alter it in substance, if they so determine and agree. Warner v. N. Y. C. & H. R. R. R. Co., supra.

The judgment should be affirmed, with costs.

Present: Gildeesleeve, Leventeitt and Erlanger, JJ.

Judgment affirmed, with costs.  