
    Anthony, Plaintiff and Respondent, v. Smith, Defendant and Appellant.
    1. On an appeal from a judgment in an action tried by a jury, the appellant cannot be heard upon the question whether the Verdict is contrary to evidence.
    2. The only appeal on which he can be heard, on that question, is one taken from an order refusing a new trial
    3. On an appeal from the judgment, he can be heard on exceptions taken at the trial, if the exceptiohs have been duly settled.
    
      4. A physician, who has attended a party as such, on his being assaulted and bruised, may, as an expert, testify as to the effect produced thereby upon the health and mind of the party injured.
    5. The Court, in its discretion, may limit the number of witnesses to be exa* mined to a particular point; and the exercise of that discretion is not the subject of an exception which can be heard on an appeal from the judgment. If it is exercised indiscreetly, and to the actual prejudice of. a party, his remedy is a motion for a new trial upon a case.
    6. It is within the discretion of the Judge whether he will allow either party, after he has rested and the evidence on the part'of his adversary has been given,' to call other witnesses to points as to which he had previously examined witnesses.
    7. A motion for a new trial on a case, or on the ground of surprise, or of newly discovered evidence, cannot be made as a matter of right after judgment has been perfected.
    8. The separation of a jury, after they have retired to deliberate, without the consent of the Court, does not, per se; entitle a party to a new trial
    9. Where there is no reason to suppose that either party has been prejudiced by such separation, and where, during such separation, the jurors did not converse with any person concerning the cause, a new trial will not be granted on account of such separation, even though the motion be made before judgment perfected.
    (Before Bosworth, Ch. J., and Hoffman and Moncrief, J. J.)
    Heard, April 4;
    decided, April 30, 1859.
    
      This action comes before the Court at General Term, on two appeals taken by the defendant, which were argued together.
    The action is brought to recover damages - for an assault and battery committed by the defendant upon the plaintiff. It was tried before Mr. Justice Slossow and a jury, on the 5th of March, 1858, and. the plaintiff recovered a verdict for $500. On the 12th of March, 1858, judgment was entered on the verdict, and a judgment-roll filed. Notice of the judgment was served on the 7th of April, and a notice of appeal from the judgment was served on the 6th of May, 1858.
    On the 14th of April, 1858, the defendant served notice “ that, on the proceedings in this cause, and the case and affidavits ” served therewith, he should move the Court, on the 22d of April, 1858, “for an order setting aside the verdict in this action, and the judgment thereon, and granting a new trial in this cause, on the ground of irregularity and errors on the part of the Judge who tried the same, and on the part of the jury, and on .the ground that the verdict is against the weight of evidence, or for such other or further order or relief as the Court shall see fit to grant.” The motion was continued by adjournments into October, 1858, when it was made before Boswobih, Ch. J., and denied. The motion was not, in fact, argued; but it being stated that an appeal from the judgment was pending, that notice of the motion had been given after judgment was perfected, and that the defendant was desirous to be heard on the matter before the General Term, an argument was waived, and the order states that defendant’s “ motion for a new trial is denied pro forma, with leave to the plaintiff to object on the appeal to the right of the defendant to make this motion, because of the perfected appeal from the judgment now pending in the General Term on said case, and also to the reading of the affidavits herein on the ground that the verdict of the jury cannot be impeached by affidavits of a juryman as to what was said in the jury room.” From that order, the defendant appealed.
    The answer did not deny the commission of the • assault and battery, but alleged matters of provocation to mitigate damages. The defendant, after assaulting plaintiff in the street, took him by force into a back room in defendant’s store, and assaulted and beat him while kept by force in such store.
    
      When the defendant had examined six witnesses as to what occurred while the plaintiff was in the defendant’s store, his counsel “ then called William Schmidt as a witness, but was asked by the Court what was intended to be proved by him, when defendant’s counsel said it was as to the same matters as already proved by the other witnesses, and that he had a number of other witnesses also to the same matters; whereupon the Court refused to hear more testimony to those matters, as unnecessarily cumulative, and defendant’s counsel excepted.”
    The plaintiff was examined as to what occurred while he was in the store, and one witness was also examined as to a conversation alleged to have been had there between the plaintiff and the defendant.
    Dr. Rowland, the physician who attended the plaintiff, on account of the injuries inflicted by the battery, was recalled, and testified thus: “I know the plaintiff’s constitution.
    “ Q. What will be the probable permanent effect upon the plaintiff’s constitution and mind of such injuries, as he received?
    '(Defendant’s counsel objected to the question. The Court overruled the objection, to which defendant’s counsel excepted, and the exception was duly noted.)
    
      “A. It is impossible to answer the question as it is put. What would be, is one thing; what is, is another.
    “ Q. What is the éffect of the injuries upon the plaintiff?
    “(Defendant’s counsel objected to this question. The Court overruled the objection, to which defendant’s counsel excepted, and the exception was duly noted.)
    “ A. It made him very nervous. I discovered the effect of it for a year.
    “ Q. What effect did it have upon his mind?
    
      “A. I think it incapacitated him for a time from doing business.”
    When the plaintiff rested, “ the defendant offered to call other witnesses as to what occurred in defendant’s office, in corroboration of those who had already testified, saying that it was manifestly a question of the weight of evidence. Plaintiff’s counsel expressed his willingness that all the testimony should be brought out.
    “ The Court declined to allow more witnesses for the defendant to be called on that point, and the defendant’s counsel excepted to the Judge’s refusal.
    
      “ The Judge then charged the jury, and they were directed to bring in a sealed verdict in the morning.
    “ At the openipg of the Court in the morning, the officer who had had charge of the jury informed the Judge that they had not agreed. Whereupon the Judge directed the jury to take their seats together again. Their foreman informed the Court that they had not been able to agree upon a verdict, the officer having kept them together from 6 until 10 o’clock of the previous evening, when they separated. Both parties were present, and their attorneys, but the defendant’s counsel, who conducted the trial for him, was not present. The Judge stated that, in ■his opinion, it was extremely desirable that they should, if possible, come to an agreement, and stated to the attorneys present that if no objection was made by them, he should send the jury out again. No objection was in fact made, but the defendant’s attorney stated to the Court that he was unwilling, in the absence of the defendant’s counsel, to express either assent or dissent. Whereupon the Judge again directed the jury to retire'and consider of their verdict; having first stated to them the substance of the legal propositions which he had stated to them the day before. Whereupon they again retired, and in . about an-hour returned with a verdict of $500 for the plaintiff.”
    The affidavits on which a new trial was moved for stated the fact as to the separation of the jury, and as to the proceedings had in Court when it opened the next morning. John Gibbons, one of said jurors, in one of said affidavits, deposed that, when the jury separated, his “ mind was entirely made up that the plaintiff was entitled to no more than six cents damages;” that, on the opening of the Court next morning,deponent” (Gibbons) “ was still of opinion that six cents was as much as the plaintiff ought to receive, and was very unwilling to render any other verdict.
    “That one of said jurors, named Bradley, thereupon stated that he was a personal friend of the defendant, and from what he knew of him he felt authorized to say that he would feel perfectly satisfied if a verdict was rendered against him for five hundred dollars, and would much prefer it to the expense and trouble of another trial; that, under the influence of these representations, and of the remarks of the Judge as to the expense and loss of time, deponent was induced to assent to a rendering of a verdict for five hundred dollars, contrary to his own convictions; that deponent has since learned that such representations of said Bradley were entirely unauthorized and incorrect; that deponent was only induced to assent to the verdict by believing that such representations were true, and having learned on the same morning after the rendering of the verdict that he had been thus misled, returned to his former opinion that a verdict for more than six cents is more than the plaintiff is entitled to recover, and he accordingly desires that such verdict may be set aside;”
    The defendant made affidavit that Bradley had no authority, or pretense of authority, for making such statements. There was no pretense that the jurors, while separated, held any communication with any person in respect to the cause.
    Five of the jurors made affidavit that they did not hear Bradley make any such remarks to Gibbons as the latter swore he did, and that Gibbons, before they separated, offered to consent to a verdict of $250 in favor of the plaintiff; that a majority of the jurors were in favor of a verdict for different sums varying from $1,000 to $5,000; and that, -before they separated, ten of. them had agreed upon $1,000 as the just and proper sum.
    The juror, Joseph Bradley, made affidavit to the same facts, and denied that he made any such remarks as Gibbons deposed that he did, or “ anything to that effect, or anything of the kind.”
    There was nothing in the affidavits tending .to show any attempt on the part of any one to interfere with the jury, either while they were separated or during their deliberations, except in so far as the affidavit of Gibbons tended to show it.
    
      E. C. Benedict, for appellant.
    
      Solomon L. Hull, for respondent.
   By the Court—Bosworth, Ch. J.

The appeal from the judgment brings under review only the exceptions taken during the progress of the trial. It does not raise the question whether the verdict is against evidence. That can only be considered at General Term on an appeal, from an order denying a motion for a new trial, taken under section 849 of the Code.

Dr. Rowland testified as an expert as to the effect produced on the plaintiff, by facts within his own knowledge. He spoke of the effect of injuries which he had seen, and in respect to which he was consulted at the time of their occurrence, and which he treated professionally. We think there was no error in his being allowed to answer the questions, “ What is the effect of these injuries upon the plaintiff?” and “What effect did it have upon his mind ?” or in receiving as evidence his answers to such questions..

The Court, in its discretion, may limit the party as to the number of witnesses to be examined as to what occurred, at a given time and place, between the parties. If he exercises his discretion to the actual prejudice of .either party, his decision in that respect is not the subject of an exception which can be reviewed on an appeal from the judgment. In this case, when the plaintiff rested, but two witnesses had been examined as to what occurred in the defendant’s store while the plaintiff was there. Neither of these two witnesses was present the whole time—one having been turned out soon after he entered it, and the other having got admission but a short time before the plaintiff was permitted to leave it.

The defendant examined six witnesses as to what the defendant did and said, and what the plaintiff said. The additional witnesses whom the plaintiff proposed to examine, were- called “ as to the same matters as already proved by the other witnesses.” Nothing new, or additional to, or variant from that to which the six had testified, was offered to be proved. On the contrary, the purpose to give such evidence was disclaimed.

The practice of interposing to prevent the examination of an unnecessary number of witnesses called to testify to the same fact, has long prevailed at the Circuits. A useless repetition of witnesses cannot further the cause of justice, and is discountenanced by the law. (1 Cow. & Hill’s Notes, 896.)

The exercise of that discretion- is not the subject of an exception. If probable prejudice has resulted from it, in the trial of any cause, the remedy is a motion for a new trial, on a case.

The defendant, who complains, in this case, that he was not permitted to call more witnesses, examined twice as many as the plaintiff, in respect to the occurrences in defendant’s store, and we think he could not have been prejudiced by not being allowed to examine more who would testify as those did whom he had examined.

It was not error for the court, after the, defendant had rested and the plaintiff had concluded his rebutting evidence, to refuse to allow the defendant to introduce additional witnesses, “ as to what occurred in defendant’s office, in corroboration of those who had already testified.” That is a matter purely in the discretion of the Court. (Shepard v. Potter, 4 Hill, 202; 1 id., 300; 20 Wend., 225; 3 id., 376; 4 Cow., 450; 5 Hill, 286.)

These views dispose of all the questions arising upon the appeal from the judgment.

The questions yet to be considered arise upon the appeal from the order denying a motion made by the defendant for a. new trial.

The notice of that motion was not served until after judgment had been perfected, and the judgment roll filed, and was not in fact made until several months subsequent to the taking of the appeal from the judgment.

By the settled practice,' as it existed prior to the enactment of the Code, a motion for a new trial could not be made on a case, or on the ground of newly discovered evidence or of surprise, after judgment had been regularly perfected. (Jackson v. Chace, 15 J. R., 354; Rapelye v. Prince, 4 Hill, 125; Roosevelt v. The Heirs of Fulton; 7 Cow., 107.)

Chapter 128 of the act of 1832, (Laws of 1832, p. 188,) allowed a bill of exceptions, duly made and settled, in an action in the Supreme Court, to be argued, notwithstanding judgment had been perfected.

In the several Courts of Common Pleas, except that for the city and county of New York, a bill of exceptions taken in them was not argued in such Court, but was heard on a writ of error from the Supreme Court.

The practice under the Code is the same as before it was enacted.

“A motion for a new trial,” on a case or exceptions, or otherwise, may be made under section 265 of the Code. When the Code, or the rules adopted under it, have not otherwise provided, the preexisting practice must be pursued. (Code, § 469.)

To secure the right to be heard on “ a motion for a new trial ” on a case, a stay of proceedings must be procured, or an order obtained, that judgment, if entered, be entered not absolutely but as security merely. (Benedict v. Caffee, 3 Duer, 669.)

If the judgment entered be absolute and unconditional, the party loses his right to be heard on a case. If a bill of exceptions has been settled, the exceptions may be heard on an appeal from the judgment, taken under section 348 of the Code, although no motion was made at Special Term for a new trial.

The defendant is not in a condition, therefore, to move for a new trial on the ground that the verdict is against evidence, or that the damages are excessive, or for anything that occurred in open Court, to which no exception was taken.

The separation of the jury, without the consent of the Court, is not, ■per se, sufficient to entitle the defendant to a new trial.

That two of the jurors eluded the care of the constable, left the jury room, and one of them remained all night- at a neighboring tavern, (Smith v. Thompson, 1 Cow., 221, n. a,) has been held not to be enough to set aside the verdict, if there be no suspicion of abuse. (Vide 3 Cow., 355; 4 id., 26, 38; 5 id., 283; 2 Wend., 52; 3 J. R., 252; 7 id., 32; 4 Barn. & Ald., 430.)

There is nothing shown justifying the inference that the jurors separated from any improper motive, or thought that they were thereby violating their duty. It is perhaps just to infer that the officer allowed them to separate, believing at the time that he was at liberty to do so, with the approbation of the court, on their failing to agree after being kept together as long as they were kept.

There is no pretense that, while separated, any one conversed with either of them in relation to this suit, the parties to it, the evidence given on the trial, or the witnesses.

There is no reason, therefore, to suspect that the plaintiff was prejudiced by the mere fact of their separation.

The defendant’s attorney, while he declined to express any assent to the jury being sent out a second time, also declined to dissent. He “stated to the court that he was unwilling, in the absence of the defendant’s counsel, to express either assent or dissent.” This was said in response to the observation of the presiding Judge, “that if no objection was made by them,” (the attorneys,) “ he should send the jury out again.”

This was clearly leaving it to the Judge, without objection, to take such course as in the exercise of his discretion he thought would promote justice between the parties.

We think, therefore, that a new trial should not be granted on account of the separation of the jury merely.

The affidavit of the juror, John ■ Gibbons, that Mr. Bradley, another of the jurors,'stated the matters detailed in the affidavit of the former, is denied by Bradley, and-the latter is corroborated by the affidavits of five other jurors. Mo juror corroborates Mr. Gibbons, by stating that any such or any other communication was made by Bradley.

Under such circumstances we cannot, with any propriety, interfere with the verdict, on the assumption that any such communication was made, even if the fact that it was made could be shown by the affidavit of a juror, to impeach the verdict of the jury.

Mo part of the charge to the jury is contained in the case. We have no right to presume that it was prejudicial to the defendant, or adverse to the views of the law applicable to the case, on which his counsel insisted.

It is not a case in which the Court would be justified in interfering with the verdict, on the ground that the damages are excessive. Being of the opinion that the defendant was not prejudiced by not being allowed to examine more than twice as many witnesses as the plaintiff did, as to what occurred while the plaintiff was in the defendant’s store, and that a new trial cannot be granted on the other grounds on which it is sought; the judgment and order appealed from must be affirmed, with costs.

Affirmed accordingly.  