
    Carl H. Otto, Respondent, v. Bertram L. Young, Appellant.
    (Supreme Court, Appellate Term,
    May, 1904.)
    Practice — Erroneous action of the trial court in permitting its stenographer to enter the jury room and read, in the absence of counsel and parties, his minutes to the jury while they were deliberating there.
    A judgment entered upon a verdict for the plaintiff must be reversed for error where it appears that after the trial justice had refused a request of the jury, made after they had retired to deliberate, for instructions in regard to a material question, he, against the defendant’s objection, sent the court stenographer into the jury room and let him read to the jury, in the absence of counsel and parties, his minutes of the testimony of the parties in regard to the question.
    The minutes of the court stenographer are not legal evidence of the matters therein stated and he, in the absence of counsel and parties, has no right to communicate with the jury while they are deliberating.
    ’ Appear by the defendant from a judgment of the City Court of the city of New York, entered upon the verdict of a jury, and from an order denying the defendant’s motion for a new trial.
    Alfred Yankauer, for appellant.
    Steuer & Hoffman (Max D. Steuer, of counsel), for respondent.
   Greebbaum, J.

This action was brought to recover damages for the breach of a written contract of employment, the defense being that the plaintiff was justifiably discharged for arbitrarily refusing to comply with the reasonable orders of the plaintiff to undertake the sale of certain goods.

When plaintiff was engaged as salesman,-the defendant’s business was that of selling silk goods. At the time of plaintiff’s discharge the defendant had given up the sale of silk goods and gone into the muslin underwear, or as it was also termed, the “white goods business,” and it was upon the alleged refusal on the plaintiff’s part to sell “ white goods ” that the defendant claimed that he discharged the plaintiff. There was a decided conflict upon the facts between the parties. The plaintiff, uncorroborated, testified that the defendant gave him no directions whatever as to the sale of muslin or white goods and that he had never refused to obey any direction of his employer. The defendant, on the contrary, testified unqualifiedly to the positive refusal of plaintiff to obey his instructions, and his testimony was unequivocally supported by that of his brother, his bookkeeper and another employee. The jury, after it had retired to deliberate, sent a request to the court asking “ whether the plaintiff was sent on the road to sell white goods previous to January 17, 1903,” the date of the discharge. ' The court thereupon sent for the jury and stated that it refused to answer the question, but that it would have the plaintiff’s direct and cross-examination and the defendant’s direct and cross-examination read to them,” to all of which defendant’s counsel excepted. The record on appeal shows that thereupon “ the stenographer went into the jury room and read the same (sic),” referring presumably to the stenographer’s minutes. Among other grounds for reversal, the defendant’s counsel urges that it was error to permit the stenographer to read his minutes to the jury in the absence of counsel. It may be noted that general objection had been taken to the reading of the testimony and that, after the court’s ruling upon this objection adverse to defendant, no special objection was interposed to the stenographer’s retiring to the jury-room to read from his notes.

Was it error to permit the stenographer to enter the jury-room and read his notes?

Section 83 of the Code of Civil Procedure prescribes generally the duties of an official court stenographer, such as taldng “ full stenographic notes of the testimony,” noting the rulings of the court and doing other matters, but there is no rule or law which makes a stenographer’s minutes evidence of the testimony that he has taken down. It is a well-settled practice that a judge is not necessarily controlled by the stenographer’s minutes in settling a case on appeal although he may properly be very largely controlled thereby. Foster v. Standard National Bank, 21 Misc. Rep. 8. The testimony of a stenographer who relies upon his minutes has no greater legal force upon a trial or in a proceeding than that of any other witness as to the declarations and statements made by a party, albeit greater weight may be given to the stenographer’s testimony than to that of one who merely depends on stray notes or memoranda or upon recollection. Permitting a stenographer to enter the jury-room, without the presence of the counsel, is in law the same a? though any stranger were allowed to tell the jury his recollection of certain testimony given upon the trial. No one may be permitted to communicate with the jury during its deliberation, a rule equally applicable to the custodian of the jury, except that, by order of the court, he may ask if the jurors had agreed. 17 Am. & Eng. Encyc. of Law (2d ed.), 1203. “It has always been the policy of the law to watch over the deliberations of the jury with great care and scrupulously to guard them against any extraneous influences.” Neil v. Abel, 24 Wend. 185. In the case just cited, the minutes of the presiding justice were given to the jury and it was held, citing Taylor v. Betsford, 13 Johns. 487, that the consent of the parties to their delivery to the jury could not be inferred but must be made to appear affirmatively. In Moody v. Pomeroy, 4 Den. 115, the court held: “It is error for a justice of the peace before whom a cause had been tried by a jury to go into the jury room while the jury are deliberating and give them instructions upon the evidence, without the express consent of the parties. It is not enough that they know he is going in and do not object.” It is unnecessary to cite other authorities to the same effect as, in the case before us, the objection raised to the reading of the minutes would negative any possible inference of a consent to their reading by the stenographer in the absence of the parties. Mischief may result in acquiescing in a practice which will permit a stenographer privately to read his minutes to the jury. The stenographer may not be absolutely accurate in essential points, or may have omitted some of the testimony, or he may give intonations or read his notes in such a way as not to fairly represent the testimony of the witness. Numerous cases are cited in Wiggins v. Downer, 67 How. Pr. 65, where private communications with a jury were held to be ground for reversal. Upon a precisely similar state of facts, the Supreme Court of Iowa held that it was error to have the stenographer sent to the jury-room to read the evidence. Fleming v. Town of Shenandoah, 67 Iowa, 505; 56 Am. Rep. 354; 25 N. W. 752. See also Padgitt v. Moll, 159 Mo. 143, reported in 52 L. R. A. 854, 857.

It is unnecessary to consider any other points raised upon this appeal as it is apparent that reversible error was committed in allowing the stenographer to retire to the jury-room without the presence of the parties. It is not incumbent upon the court to inquire whether the communication given to the jury by the stenographer was material or had any influence upon the verdict of the jury. Kehrley v. Shafer, 92 Hun, 196.

For the guidance of the court upon a new trial, it may be said that the admission of defendant’s stationery showing plaintiff’s name on the note heads used in defendant’s silk business was error, as it was wholly immaterial to the issues and was calculated to convey an erroneous impression upon the jury.

The peculiar effect upon a jury of what may appear to be harmless immaterial testimony and the irrelevant circumstances that often influence them are well illustrated in this case when the jury asked for information as to whether plaintiff was sent on the road by the defendant to sell white goods previous to January 17, 1903, notwithstanding that the learned trial justice, in a clear charge, had plainly instructed the jury that the defendant was hound under his contract to endeavor to sell, to the best of his ability, such merchandise as the defendant directed him to sell. ■

The judgment must be reversed ánd a new trial ordered, with costs to appellant to abide the event.

Freedman, P. J., concurs.

Leventritt, J., concurring. I concur on the ground that it was improper to allow the stenographer to enter the jury-room.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  