
    Philip M. McHugh, Respondent, v. J. Edward Jones, Appellant.
    Argued May 22, 1940;
    decided July 24, 1940.
    
      
      Hyman I. Fischbach and John J. Corwin for appellant.
    A verdict may not be set aside upon affidavits of jurors who participated in the rendition thereof. (Payne v. Burke, 236 App. Div. 527; Tyler v. Stevens, 4 N. H. 116; McDonald v. Pless, 238 U. S. 264; Hanor v. Housel, 128 App. Div. 801; Zint v. Mulligan, 140 App. Div. 230) Zimmerman v. Carr, 59 Ind. App. 245; Broadway Building Co. v. Saladino, 81 Misc. Rep. 73; Taylor v. Evart, 2 How. Pr. 23; Mais v. Ruh, 57 App. Div. 15; Gans v. Metropolitan Street Ry. Co., 84 N. Y. Supp. 714; Clum v. Smith, 5 Hill, 560; Miller v. Gerard, 200 App. Div. 870; Lyberg v. Hols, 145 Wash. 316; Maryland Casualty Co. v. Seattle Electric Co., 75 Wash. 430; Hinkle v. Oregon Chair Co., 88 Ore. 404.)
    
      Horace M. Gray and Charles E. Wythe for respondent.
    The Appellate Division properly held that the trial court should have investigated into the existence of fraud in the selection of the jury before disposing of the motion. (Slater v. United Traction Co., 172 App. Div. 404, Clark v. United States, 289 U. S. 1; Lane v. Vaselius, 137 Misc. Rep. 756; Baccelli v. Booth, 75 Misc. Rep. 260; Dalrymple v. Williams, 63 N. Y. 361; Steubing v. Krischer, 168 Misc. Rep. 20.)
   Per Curiam.

Prima facie evidence of ineligibility of one of the members of the jury to sit as a juror was disclosed by statements made outside the jury room and having no relation to the deliberations of the jury. The disclosures were sufficient, even though contained in affidavits of jurors, to require the court to make inquiry as to their truth for the purpose of determining the question of eligibility. (People v. Leonti, 262 N. Y. 256.)

The order should be affirmed, with costs, and the question certified answered in the negative.

Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ., concur.

Order affirmed, etc.  