
    Mary M. Seeley, Resp’t, v. Arthur M. Bisgrove, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed December 27, 1894.)
    
    Justice’s court—Justice in jury room.
    It is error for the justice to enter the. jury room during their deliberations and without the knowledge or consent of the plaintiff or his attorney, read to them the defendant’s original answer, which had not been read to them before.
    
      Appeal from a judgment, reversing a judgment in favor of the defendant, rendered in the justice’s court. ■-
    
      W. R. & F. Hughitt, for app’lt; C. R. Milford, for resp't.
   Haight, J.

This action was brought to recover for a quantity of hay alleged to have been sold by the plaintiff to the defendant. -The case was tried before a jury. The verdict was not satisfactory to the plaintiff, and she appealed. It appears from the return of the justice that he entered the jury room on two separate occasions during the deliberation of the jurors upon their verdict. He states that this was done with the knowledge and consent of both the plaintiff and the defendant. In this respect his return is in conflict with the affidavits of the plaintiff and of her attorney, who both swear that they did not know or consent to his so visiting the jury. But, assuming that the return is correct that he entered with the knowledge and consent of the parties, he further returns that, on the occasion of his first visit to the jury room, he asked the jury if they could agree, and they said they could not; that he then told them that he had a paper which might help them to decide, and he then read to them the original answer of the defendant, which had not been read to them before. And he further returns that he read the answer to the jury without the knowledge or consent of either party, but says that he told the parties afterwards ; that, on the occasion of his second visit to the jury, he found they had not agreed ; and that he then told them*that, if it would help bring them to a decision, he would throw off some of his costs, as he thought that the difference was slight between them, etc. We think that the reading of the defendant’s answer to the jury without the knowledge or consent of the plaintiff was error. It contained what is alleged to have been the statement of the plaintiff in reference to the character and quality of the hay, and the alleged statements of the defendant as to the quality, character, and condition in which it was found ; it also contained alleged statements of the plaintiff to the effect that she told the defendant that he need not take the hay, etc., all of which might have prejudiced the plaintiff’s case. This question has recently been considered by this court in the case of People v. Linzey, 79 Hun 28 ; 61 St. Rep. 240; in which the authorities were collected and discussed. See, also, Valentine v. Kelley, 54 Hun, 78 ; 28 St. Rep. 481; and Gibbons v. Van Alstyne, 29 St. Rep. 461. For the reasons stated, the county court properly reversed the judgment. The judgment appealed from should therefore be affirmed.

All concur.  