
    Frederick C. Werner, Respondent, v. The Interurban Street Railway Company, Appellant.
    
      Misconduct of a juror — amotion to set aside the verdict should be made at Special Term — if made without objection at the Trial Term an appeal will be considered — the mere passing of the time of day between the juror and an agent of the defendant is not misconduct.
    
    A motion to set aside the verdict of a jury because of misconduct on the part of a juror should be made at the Special Term.
    Where, however, such a motion is made at the Trial Term, and no objection is raised thereto, the Appellate Division will not refuse to consider an appeall from an order granting the motion because of the irregular practice.
    The fact that a juror sitting on the trial of a case, during the usual midday recess, greets and 1 ‘ passes the time of day ” with a person whom be knows to be an adjuster in the employ of the defendant in the action, does not constitute misconduct which will entitle the plaintiff to have a verdict in favor of the defendant set aside, particularly where the plaintiff’s attorney witnessed the incident and did not call the attention of the court thereto until after the rendition of the verdict.
    Appeal by the defendant, The Interurban Street Railway Company, from an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of the county of Kings on the 25th day of January, 1904, vacating and setting aside the verdict of a jury in favor of the defendant and granting a new trial of the action on the ground of the misconduct of a juror.
    
      Luke D. Stapleton [Harlan, Moore with him on the brief], for the appellant.
    
      Henry Escher, Jr. [George F. Elliott with him on the brief], for the respondent.
   Jenks, J.:

This is an appeal from an order made at the Trial Term, upon application by the plaintiff, setting aside a verdict for the defendant and granting a new trial on the ground of the misconduct of a juror. In Fleischmann v. Samuel (18 App. Div. 97; appeal dismissed, 154 N. Y. 731) we held that the correct practice is application to the Special Term ; but, as no question was raised, we shall proceed to consider the appeal.

The verdict was for the defendant. The alleged misconduct is that, during the trial, juror No. 8 talked with Hr. Bennings, an adjuster of the defendant. An attorney and the counsel for the plaintiff saw the incident, of which no particulars were thereafter developed. Though thus fully apprised, he permitted the trial to continue to its conclusion, and only after the verdict called the incident to the attention of the court. His acquiescence precluded his impeachment of this trial. (Bruswitz v. Netherlands Steam Nav. Co., 64 Hun, 262; Gale v. N. Y. C. & H. R. R. R. Co., 13 id. 1; affd., 76 N. Y. 594; Fox v. Metropolitan Street R. Co., 93 App. App. Div. 229.)

Examination of the merits convinces us that the order should not stand. The testimony taken by the learned trial justice shows that the juror, a man of large business affairs and of substance, was a stranger to the defendant. The specification is that' this juror, within a few minutes of the close of the mid-day recess hour, held this conversation, near the door of the court room, in the courthouse hall. The plaintiff’s counsel, his subordinate, a lawyer, and a juror of the panel testify that they saw the conversation, but none heard it. On the other hand, juror No. 8 and Mr. Bennings deny that there was any talk between them. Judge Quigley, an attorney of this court, testifies that he was standing in conversation with Mr. Bennings about another case pending against the defendant, that juror No. 8 came along, and, being an old friend, greetings passed between him and Judge Quigley. Judge Quigley asked him what his- business was there, and the juror answered that he was a juror on a railroad case, whereupon Judge Quigley said: “Don’t talk about it here, for this is the Metropolitan Street Railroad you are talking to.” The juror said: “ How long since you have been connected with the railroad?” Judge Quigley replied: “ I am not connected, but this gentleman is.” Judge Quigley did not introduce the juror and Mr. Bennings, but walked away, and his impression is that the juror did likewise, though he is not certain. Weighed in the scale of sight against that of hearing and participation, we think that the evidence establishes that the version of the juror, of Mr. Bennings and of Judge Quigley is correct. “No man becomes suddenly base,” and it is hard to believe that a juror of this character would, at the very door of the courthouse, in the sight of all men, hold a conversation to invite embracery. No juror is so hedged in as to be held vile if he stop on his way to the box to accost a friend or to greet an acquaintance. We do not think to impute falsification to counsel of such high standing as he who represented the plaintiff, or to the other witnesses, but sifting their testimony, and bearing in mind that it is but based on sight, we think that they mistook the character of this fleeting incident.

We might rest here, but the learned trial justice has written an opinion which states that he cannot “ escape the conclusion ” that the juror, after he had been notified by Judge Quigley that Mr. Bennings represented the defendant, conversed with Mr. Bennings. We cannot find a line of testimony which so necessai’ily confines the learned justice. True, there is testimony that these men stood apart, but no mention is made of this situation relative to that of Judge Quigley. But assume, counter to our view of the testimony, that it is established that the juror did talk with Mr. Bennings after he knew of his relation to the defendant. All persons familiar with the doings of our courts know that attorneys, counsel, jurors and witnesses who are strangers but for the contact in a trial, are accustomed to greet one another and exchange commonplaces, or, as the vernacular has it, pass the time of day.” Such conduct is ascribed to common courtesy, not to conspiracy. It is rarely made the subject even of comment. In Borland v. Barrett (76 Va. 128, 138) the court say: It frequently happens, however, in civil cases, during the recess of the court, parties and jurors are casually thrown together at hotels, on the highway and other public places, and converse upon indifferent topics without a thought of impropriety in so doing. These conversations have never been considered as sufficient of themselves -to set aside a verdict. It is so laid down by Lord Hale and by the authorities with but few exceptions. (Hale P. L. Cs. p. 308.) ” (See Baylies N. T. & Ap. [2d ed.] 590; State v. Way, 38 S. C. 333; Bryan v. Commonwealth, 33 S. W. Rep. [Ky. Ct. of App.] 95; People v. Dunne, 80 Cal. 34; Delaney v. Hartwig, 91 Wis. 412; Turner v. St. John, 3 Coldw. 376.) The learned counsel for the respondent, a gentleman of high standing and of appreciation of the ethics of a trial, speaking in his printed points of the plaintiff’s attorney, a gentleman of like standing, says that he “ was loath to impute deliberate wrongdoing to either of these persons, and said nothing; these two men may have been talking about the most innocent subject, instead of being guilty of a grave wrong. When, however, the verdict came in, an entirely different state of facts presented itself.” What was the different state of facts \ ” Let the counsel answer by his next sentence: Counsel for the plaintiff was astonished to see that the verdict was against him; then for the first time he knew that the interview complained of had had an unlawful purpose.” How did he know ? By the verdict ? Did the mere vote of this juror in unanimity with the other eleven indicate that it was the" result of improper influence upon him ?

The order should be reversed, with ten dollars costs and disbursements, and the verdict should be reinstated.

All concurred.

Order reversed, with ten dollars costs and disbursements, and verdict reinstated. 
      
      2 Hale P. C. 308.— [Rep.
     