
    Jennie Perry, as Administratrix, etc., of John G. Perry, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    Fourth Department,
    July 7, 1915.
    Trial—motion to set aside verdict — incompetency and misconduct of jurors—waiver of disqualification of juror — new trial — motion denied for laches.
    The fact that a juror upon his examination failed to recall that he had personal knowledge of a prior nonsuit in the action, is not prejudicial to the plaintiff, especially where it appears that the fact of the nonsuit was distinctly disclosed in the presence and hearing of the jury.
    A motion for a new trial upon the ground of alleged incompetency and misconduct of the jurors made more than ten months after the trial, and presenting no additional facts not known to the plaintiff’s attorneys on a prior motion, should be denied for laches.
    A plaintiff by failing to object to the disqualification of a juror after attention has been called thereto by the court during the trial, waives her right to object to the verdict upon such ground.
    Appeal by the defendant, The New York Central and Hudson River Railroad Company, from an order of the Supreme Court, made at the Niagara Special Term and entered in the office of the clerk of the county of Orleans on the 28th day of January, 1914, granting plaintiff’s motion to set aside the verdict of a jury in favor of the defendant and the judgment entered thereon and granting a new trial.
    
      
      Hoyt & Spratt [Maurice C. Spratt and Alfred L. Becker of counsel], for the appellant.
    
      Seaman & McCollum [S. Wallace Dempsey of counsel], for the respondent.
   Per Curiam:

As stated in plaintiff’s notice of motion, the grounds upon which she sought to set aside the verdict of the jury and the judgment entered thereon were the alleged incompetency and misconduct of the jurors, and particularly that of two jurors specifically named. The affidavits in support of the motion recited statements by individual jurors made to affiants after the trial, and also observations of the demeanor of one of the jurors during the course of the trial, which it was claimed plainly indicated that from the beginning of the trial he was prejudiced in favor of the defendant and against the plaintiff. It was further asserted that another juror had served as a juryman at the term of court at which a previous trial of the action had been had (though he was not a juror who sat in that trial) which resulted in a nonsuit, of which fact he had personal knowledge. It appears that when the juror last referred to was examined before his acceptance as a juror the fact that he had known of the nonsuit had escaped his recollection. There is no suggestion that his answer at that time that he knew nothing about the case was consciously untruthful. Under the circumstances disclosed by the record, we think it was not made to appear that plaintiff’s interests were in any way prejudiced on the trial by the fact that this juror’s recollection as to his knowledge of the prior nonsuit was temporarily at fault, especially since it appears from the minutes of the last, trial, which were among the papers used on this motion, that the fact of the nonsuit was distinctly disclosed in the presence and hearing of the whole jury. In granting the order it appears that the learned justice correctly attached ho significance to the suggestion that this juror was disqualified.

The trial was finished June 5, 1912, and shortly thereafter the jurors were interviewed in plaintiff’s behalf, and, as stated by the trial justice, who afterwards at Special Term granted the motion for the order appealed from, in his opinion the person who interviewed them “ on July 12, 1912, made an affidavit setting forth the principal facts relied upon on this motion.” The other affidavits used on the motion, though verified at subsequent dates, contain no additional facts not then known to plaintiff’s attorneys, except a recital of a subsequent interview with one of the jurors whose statement to the person who made the affidavit of July twelfth, above referred to, is embodied in that affidavit. This last interview was had as early as December 10, 1912, as appears by the affidavits purporting to give the substance of it. Meanwhile, plaintiff’s motion for a new trial seems to have been made, and later denied. The present motion for a new trial was not noticed until April 25,1913. No excuse is offered by plaintiff for this unwarranted delay that would serve even as an apparent reason for it beyond the date of the interview with the juror on December 10, 1912, above referred to. We think the motion should have been denied for laches.

The court at "the hearing, on motion of defendant’s attorneys, directed that the affidavits, upon which the motion was made, “be stricken out and not read in so far as they purport to contain a recital of statements made to the deponents by jurors, on the ground that any such statements are incompetent as tending* to impeach the verdict by the declarations of the jurors and as hearsay. ” In support of this ruling the court cites in his opinion the cases of People v. Birnbawn (114 App. Div. 480); Broadway Building Co. v. Saladino (81 Misc. Rep. 73) and Hanor v. Housel (128 App. Div. 801). These cases and others, including those cited therein, furnish ample authority for the ruling of the court in that regard. These statements having been eliminated from consideration, there remained in support of the motion the affidavits as to the demeanor of one juror on the trial, which it was claimed indicated a prejudice or bias against the plaintiff and her witnesses and in favor of defendant, arising from some influence, knowledge or suggestion received from a source outside of the proceedings during the trial. This was supplemented by the recollection of the court as to his observations of the demeanor of this juror during the trial. The manner of the juror during the trial is recited in the order to have been “an appearance of keen interest and approval when strong points were made for the defendant, and an appearance of indifference and incredulity at times when plaintiff’s evidence was given.” The demeanor of the juror, if it may be held to have warranted the conclusion that he was improperly biased against plaintiff and in favor of the defendant, upon which we express no opinion, 'was, as appears by the , affidavits and by the statements made by the trial court observed during the course of the trial and was, as appears, called to the attention of plaintiff’s attorneys by the trial court during the course of the trial. Notwithstanding this fact no effort appears to have been made at the time to investigate by inquiry of the juror, or otherwise, whether the suspicion of bias, which his demeanor had aroused, was well founded, and the trial proceeded to its conclusion without objection or suggestion to the contrary on the part of plaintiff. We are of the opinion that by so doing plaintiff waived her right to object to the verdict upon the ground of the disqualification of the juror. A party should not be permitted to disregard the open warning that a juror was objectionable and having speculated on the result of the trial successfully assert that there had been no waiver of the right to object that the juror was disqualified. (Werner v. Interurban Street Railway Co., 99 App. Div. 592; Queenan v. Oklahoma, 190 U. S. 548.)

The order should be reversed, with ten dollars costs and disbursements, and motion denied.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied.  