
    CHARLES ZUST, Appellant v. JULIA T. LINTHICUM, Respondent.
    
      Jury, communications between them and the trial judge after they have left the bar to consider their verdict, must take place openly in the court or by and with the assent of parlies.
    
    In this case the jury while deliberating sent an inquiry to the court, that reached the court, and was made known to counsel of both parties. Plaintiff’s counsel objected to any communication between the court ■ and jury except in open court on the recall of the jury, This objection was at the time overruled, but no harm came from it for the question was not then answered. Subsequently the question was answered, and no exception was made to the answer, and no indication of dissatisfaction with it appears on the record. Held, that it is fair to assume that, at the time it was given the plaintiff was not averse'to it because of incorrectness or otherwise. If the plaintiff was averse to the answer being given to the jury for any cause, he should have called the attention of the judge to his complaint, so that the error, if any existed, could have been avoided or corrected at the time.
    Before Sedgwick, Oh. J., and Dugbo, J.
    
      Decided December 1, 1890.
    
      Appeal "by plaintiff from a judgment in favor of defendant entered upon the verdict of jury, and from orders denying plaintiff’s motions for a new trial on the judge’s minutes, and on the case as settled.
    
      Frederick G. Herter, attorney, and A. Walker Otis of counsel, for appellant, argued :—
    The communication between court and jury against the objection of the plaintiff was fatal to the verdict. This has been settled by numerous authorities, including the following: Taylor v. Betsford, 13 Johns. 487 ; Neil v. Abel, 24 Wend. 185 ; Watertown Bank v. Mix, 51 N. Y. 558 ; Plunkett v. Appleton, 9 J. & S. 196., Monell and Sedgwick, JJ. In the last case the court say, adopting the language of the Court of Appeals in Watertown Bk. v. Mix. “ There ought to be no communication between the judge and the jury after they have gone from the bar to consider their verdict in relation to the oral evidence or his instructions unless it take place openly in court or with the express assent of the parties.” And the court add that their decision is based on grounds of public policy and that “ not to set aside the verdict would”establish a precedent which would tend to impair the upright and faithful administration of justice.” In the case at bar the error was aggravated in this, that the judge assumed to state that a certain fact stood proven in the cause. This was a usurpation of the province of the jury and would of itself have been error even had the jury been recalled.
    
      Thomas Bracken, attorney and of counsel, for respondent, argued :—
    The objection taken to the answering of the query made in writing by the jury to the court is not well taken, and the motion to set aside the verdict is not tenable. Both are based on the ground that the communication was an irregularity. It was not. It was discretionary with the court to call the jury into the court-room and answer their question verbally, or on due notice to the attorneys for both sides, answer same in writing. The learned judge properly exercised the discretion vested in him, and from this there is no ground for appeal. The communication was made to and answered by the learned judge in open court, and with due notice to all parties interested. No injustice was done, nor was any irregularity had. Taylor v. Betsford, 13 Johns. 487. The case of Plunkett v. Appleton, 9 Jones & Spencer, 159, quoted by appellant and relied upon by him, is easily distinguished from- the case at bar, and is in no manner analogous. The cases in which the court will interfere with the exercise of discretion by the judge are .rare ; the application is nearly always denied. Frost v. Niles, 1 Hill. 300 ; Meakin v. Anderson, 11 Barb. 215 ; Sheldon v. Wood, 2 Bosw. 267.
   By the Court.—Dugro, J.

Plaintiff appeals from a judgment and two orders each denying a motion for a new trial : he cannot be successful in his appeal from the judgment, for an appeal from a judgment rendered upon the verdict of a jury only brings up the exceptions taken upon the trial (Third ave. R. R. Co. v. Ebling, 100 N. Y. 98), and he took no exception at the trial.

The motion for a new trial upon the grounds that the verdict was contrary to the evidence and to law was properly denied.

The verdict was not against the evidence, as the only witness examined was interested in the event of the trial, and the jury was, therefore, not bound to take his testimony as conclusive although it was uncontradicted. McNulty v. Hurd, 86 N. Y. 547. The case does not disclose that the verdict was contrary to law.

The later order appealed from denied a motion for a new trial made upon the ground that a communication sent by the judge to the jury was erroneous and in violation of the rights of the plaintiff. It seems the jury, while deliberating, sent an inquiry to the court in the presence of all counsel ; the plaintiff’s counsel thereupon objected to any communication between the court and the jury except by the recalling of the jury into open court; this objection, as calculated to preserve the conduct of the trial from irregularity, was doubtless proper, but it was overruled. No harm, however, came to the plaintiff by this ruling, for the question had not been answered. Thereafter the question was answered, no exception was taken to the answer, and no indication of dissatisfaction with respect to it appears upon the record ; it is, therefore, fair to assume that at the time it was given the plaintiff was not averse to it because of incorrectness. If it was otherwise he should in fairness have called the attention of the trial judge to his complaint so that the answer could have been corrected if cause therefor existed. The fact that the answer was not literally correct does not satisfy me that the plaintiff was prejudiced by it. A just inference from the question is that the jury desired to know whether the defendant had been paid by the plaintiff an amount equal to his wages up to the time of the formation of the corporation. If this was the information desired the answer conveyed it.

Upon the whole case, I think the judgment and orders should be affirmed.

Sedgwick, Ch. J., concurred.  