
    Alma C. Johnson, as Administratrix, etc., of William S. Johnson, Deceased, Respondent, v. Riter-Conley Manufacturing Company, Appellant.
    First Department,
    March 8, 1912.
    Trial — information communicated to juror out of court—misdemeanor vitiates verdict.
    A juror who, while going to his home during an adjournment of a trial, receives information from certain witnesses in the case that there had been two previous trials of the same case, one of which resulted in a large verdict for the plaintiff and the second in a disagreement, is guilty of a misdemeanor under section 373 of the Penal Law, and a judgment entered on a verdict in which he participated will be reversed even though the other jurors were not influenced by him.
    Appeal by the defendant, the Riter-Conley Manufacturing Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of January, 1912, denying the defendant’s motion to set aside the verdict of a jury and vacate a judgment in favor of the plaintiff entered in said clerk’s office on the 9th day of October, 1911, upon the verdict of a jury for $15,000.
    
      Scott McLanahan, for the appellant.
    
      Charles P. Robinson, for the respondent.
   Dowling, J.:

Plaintiff has recovered a judgment for $15,000 damages for the death of intestate caused by the alleged negligence of defendant. After the trial certain facts as to the conduct of one of the jurors thereat were brought to the attention of defendant’s attorneys, who thereupon moved to vacate the judgment, to set aside the verdict and for a new trial. Upon that motion, numerous affidavits were submitted tending to show that juror No. 5, John Winton, Jr., had at the close of the first day of the trial expressed his determination to have brought in a large verdict for plaintiff and to control another member of the jury to join with him in such effort. These charges are denied by Winton. Conflicting statements were sworn to by the various affiants, Burt Rice having sworn to one affidavit used on defendant’s behalf and to two affidavits used on plaintiff’s behalf. Without determining how far these charges are justified, we find sufficient in Winton’s own admissions to necessitate the granting of the motion. Clarence Pentz made affidavit that at the close of the first day of the trial (which occupied three days in all) as he and one Burt Rice, both witnesses upon the trial, were on their way home, the juror Winton came up to them, inquired if they were on the Johnson case and after certain statements said, “Where are you going ? ” They replied that they were going to drink, whereupon Winton said, “ Come on,” and all three went to a saloon, where he paid for liquor for all three, gave them his card and made certain other statements. In this Pentz was corroborated by Burt Rice. Winton in his first replying affidavit admitted that he met Pentz and Rice on his way to the saloon in question, for which they were also bound, and that they drank together, but denied he paid for all. He then swears that Pentz then told him that there had been two previous trials of the case; that the first trial resulted in a verdict of $1,500 for the plaintiff, and the second in a disagreement of the jury. This admission he never thereafter qualified in any way. Of course, the fact that he received this information was never communicated to the trial court. In so receiving it, Winton was guilty of a violation of section 373 of the Penal Law (formerly section 73 of the Penal Code) providing as follows: “A juror * * * who * * wilfully receives any communication * * * or information relating to a cause or matter pending before him, except according to the regular course of proceeding upon the trial or hearing of that cause or matter, is guilty of a misdemeanor.” While the other jurors all make affidavit that the verdict was reached after full deliberation, and without any influence exerted upon them by Winton, the fact remains that their action was participated in by a juror who, even if not as prejudiced and biased against defendant as some of the affidavits.would make him appear, still had, in violation of law, received information about the results of prior trials of the action which he was not entitled to receive and the fact of his having received which, if made known to the court, would have required his dismissal from further service upon the jury. As was said by Justice Daniels in Sparks v. Wakeley (7 Wkly. Dig. 80): The affidavit leaves little reason for doubting the truth of the charge that one or more of the jurors before whom this action was tried, improperly conversed with other persons concerning the case. Nothing improper was probably designed by the jurors, but the fact still remains that the jurors may have been, and probably were, influenced in their verdict by what was improperly said to them before or during the progress of the trial. Presumption cannot be closely balanced in cases of this description. The purity of the administration of justice requires that it should be guarded against extraneous influences of this description; and that can only be done by setting aside the verdict of jurors who have so far forgotten or disregarded the obligations of their office as to engage in conversation with others concerning legal controversies they are called upon to hear and decide.”

Upon the trial of an action litigants are entitled to the verdict of a jury of twelve impartial men, who have not been guilty during the trial of acts of impropriety so gross as to bring them within the inhibition of the penal statutes of the State, or of acts even if technical and trivial, which have affected the result of the trial. “We cannot determine with certainty, nor is it necessary that we should, that the acts complained of did influence the verdict. It is sufficient cause for reversal if they are likely to do so.” (Matter of Vanderbilt, 127 App. Div. 408.) In the case at bar, even if the other jurors were uninfluenced by Winton, and even if he were not so prejudiced and biased as he is claimed to have been, the salient fact remains that he was guilty of a penal offense in receiving*, outside the court room, information concerning the prior trials of the cause, and this misconduct was too serious to permit of a verdict in which he participated to remain effective.

The order appealed from will, therefore, be reversed, with ten dollars costs, and the motion to vacate the judgment, to set aside the verdict and for a new trial will be granted, with ten dollars costs.

Clarke, McLaughlin, Laughlin and Scott, JJ., concurred.

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