
    FRANCIS B. HEGEMAN, Plaintiff and Respondent, v. MARY A. CANTRELL, et al., Defendant and Appellant.
    I. VERDICT.
    1. Power of the court to send back a jury, after haying ANNOUNCED THEIR VERDICT, FOR RE-CONSIDERATION.
    
      (a) Before the verdict is recorded, the court may, if it appear to be a mistaken one, send the jury back for a further consideration.
    H. ISSUES FRAMED IN AN EQUITY CAUSE FOR TRIAL BY JURY.
    1. Decisions made during the trial, and the verdict itself, AS TO BEING SUPPORTED BY SUFFICIENT EVIDENCE, HOW TO BE REVIEWED.
    
      (a) Only, either on the hearing of the cause at special term for the trial of equity causes, or on a case with exceptions, to be made and settled as provided in other cases, or on a motion upon the minutes.
    3. Verdict, conclusiveness of.
    
      (a) The court, at the ultimate hearing and disposal, exercises its discretion, and is not precluded from rejecting the verdict, and ordering a new trial, or from finding the question of fact itself.
    IH. APPLICATION OF THE PRINCIPLES.
    Three questions were framed for trial by jury. The judge charged the jury that if they found the first two in the affirmative, they should render a certain specified finding on the third, but if they found the first two in the negative, then they should render a certain other specified finding on the third. The jury retired, and brought in a verdict finding the first two questions in the negative, but finding the third in the manner in which by the charge they were authorized to find only in case of finding the first two in the negative. The court refused to receive the verdict, repeated its charge, and sent the jury back for further consideration. The jury returned with a verdict finding the first two questions in the negative, as before, and as to the third, in the manner in which by the charge they were directed to find it in the event of finding the first two in the negative. The verdict was against the defendant. The cause was then brought on and heard at a special term as an equity-cause. No evidence was offered by the defendant. Judgment was rendered for the plaintiff. Afterwards defendant moved to set aside the verdict on affidavits and the judgment roll.
    Held :
    1. That on such a motion, which brought neither the evidence nor the charge before the court the question as to whether there was error in the charge, could not be entertained.
    2. That from so much of the charge as was before the court there seemed to be an inconsistency in the&st verdict which authorized the trial judge to refuse to receive it, and send the jury back.
    Before Curtis and Sedgwick, JJ.
    
      Decided February 7, 1876.
    Appeal by the defendant Mary A. Cantrell, from an order made October 21, 1875, denying her motion to set aside the verdict of the .'jury.
    The action was brought to foreclose a mortgage to secure the sum of twelve thousand five hundred dollars, by the defendant to the plaintiff. The defendant set up the defense of usury, claiming that she, in fact, received but eleven thousand five hundred dollars, and that the difference was deducted by the plaintiff, as an additional percentage for making the loan.
    On October 5, 1874, the following special issues were framed to be tried by a jury.
    First—Was there any agreement between the plaintiff, Francis B. Hegeman, and the defendant, Mary A. Cantrell, other than the one set forth in the bond and mortgage referred to in the complaint herein ?
    Second—Was there any unlawful or corrupt agree ment between the plaintiff, Francis B. Hegeman, and the defendant, Mary A. Cantrell, by which it was agreed that the said defendant, Oantrell, should pay to the plaintiff, for the loan of the sum of twelve thousand five hundred dollars, secured by the bond and mortgage of said Cantrell, referred to in the complaint, the sum of thirteen hundred and fifty dollars, over and above the seven per cent, specified in said bond and mortgage ?
    Third—What amount of money did the plaintiff advance on the bond and mortgage set forth, in the ■complaint ?
    It was further ordered that such issues be tried on notice from either party to the other of two days at ■any trial term of this court, and said issues, when determined, be certified to this court for final judgment thereon herein.
    The issues were tried and submitted to a jury, March 18th, 1875.
    After the charge of the court, the jury retired, and brought in their answers to the issues, as follows : To the first and second issues they answered “No,” and to the third issue, “Eleven thousand one hundred and fifty dollars.”
    The court declined to receive the verdict, or to have it recorded, and directed the jury to retire to their room for further deliberation. The affidavits as to what occurred are conflicting. It appears by the ■stenographer’s minutes, as stated in the defendant’s moving papers, that the court read again to the jury this portion of the charge: “I have charged you. there is no direct evidence that the plaintiff knew anything of the transaction of Canis, or even heard of it; yet if you believe the testimony of Mrs. Cantrell, and upon that, in connection with the other evidence in the case, can satisfy yourselves, upon your oaths, that there was collusion between the plaintiff and Mr. Norland, as her agent, on the one side, and Canis on the other, and this deduction of one thousand three hundred and fifty dollars was a mere device, contrivance, &c., to defeat the provisions of the statute, and to secure to the plaintiff a greater rate of interest for the loan of the money than the legal rate, or if this device originally resorted to by Mr. Dorland, without authority, was subsequently ratified by the plaintiff with full knowledge of the facts, then in either case you will answer yes to the first two questions, and in response to the third, yon will fix the amount of money advanced by the plaintiff on the bond and mortgage set forth in the complaint, at the sum of eleven thousand one hundred and fifty dollars. These are the only conditions upon which you are to find ‘Eleven thousand one hundred and fifty dollars.’
    “If you believe the other theory that the plaintiff was not directly or indirectly guilty of usury in any of the various ways, in which I have instructed you she may have become liable, you must find a verdict for twelve thousand five hundred dollars.”
    The defendant’s counsel excepted. The jury again retired, and returned with their verdict, answering “ Ho ” to the first and second issues, as before, but to the third issue they answered “Twelve thousand five hundred dollars.”
    The defendant then moved for a new trial on an affidavit, which was denied, April 7th, 1875.
    The cause was then proceeded with at the April special term, and heard as an equity cause. Ho evidence was offered by the defendant. Judgment was rendered for the plaintiff on or about April 8th, 1875.
    In September, 1875, the defendant moved on affidavits and the judgment roll to set aside the verdict found by the jury, before whom the special issues were tried.
    This motion was denied, and from the order denying it, this appeal is taken.
    
      
      Henry C. Morange, for the appellant.
    
      A. H. Wagner, for the respondent.
   By the Court.—Curtis, J.

The finding of the jury upon the third issue submitted to them was probably inconsistent with their findings as to the first and second issues also submitted to them. In the absence of the charge of the judge, and of all the evidence, as there is no case made by which either of these are brought before the court, on this application, it is not easy to perceive what transpired at the trial. This inconsistency was apparently an error, or oversight, to which the court, upon receiving from the foreman the findings of the jury, immediately called their attention, and directed them- to retire for further consideration. This was the proper course to be pursued by the court.

A verdict is of no force until given openly in court, and received and recorded, and until received and recorded the jury have a right to retire, and to further consider their verdict and to alter it. The practice has long prevailed that the court may of its own accord send the jury back to reconsider their verdict, when it appears to be a mistaken one, before it is received and recorded (Root v. Sherwood, 6 Johns. 68). If the verdict is in writing, it makes no difference, and the jury have the same right, before it is received and recorded, to retire and to re-consider it, and to vary from their first finding (Blackley v. Sheldon, 7 Johns. 34).

As far as can be gathered from what is before us as to what transpired at the trial, and the delivery of the verdict, there was eminent propriety in the court sending back the jury to further consider the questions submitted. If there was an oversight or an incongruity in their finding, they had an opportunity of correcting it; and if there was not, they had an opportunity for farther deliberation and intelligent consideration, and of answering the questions, as they might find they should be answered from the evidence.

If there was any error on the part of the judge in giving instructions or directions to the jury, it is very difficult for us to pass upon it without having either the testimony or the charge before us. The affidavits of jurymen, taken ex parte, and long after the trial, are liable to be affected by failure of recollection or by sympathy for the losing party. At any rate, the Eules, hereafter referred to, and settled practice of the court, have long established another course of procedure that may be pursued to set aside a verdict, and to obtain a new trir 1 of special issues.

The issues in an equity cause are framed and sent to a jury simply to inform the conscience of the court. At the ultimate hearing and disposition of the cause, the court exercises its discretion as to how far it is to be controlled by the findings of the jury, and is not precluded even then from rejecting the verdict, or ordering a new trial, or from finding the question of fact itself (Patterson v. Ackerson, 1 Edwards Chy. R. 103; Brown n. Clifford, 7 Lansing, 53 ; Vermilye v. Palmer, 52 N. Y. 475).

In order to justify and speedily review the trial of the issues sent to a jury for determination, the Bules of the court require either party feeling aggrieved by the determination of such special issues, and desirous of a new trial on the ground of any error of the judge, or on the ground that the verdict is against evidence (except where the judge directs such motion to be made upon his minutes), to make such motion on a case and exceptions, or a case containing exceptions, to be served and settled, as provided in other cases (Rule 33, 1858 ; Rule 40, 1874).

If this application brought before us the proofs at the trial, and the judge’s charge, instead of the conflicting ■allegations of ex parte affidavits, it would greatly facilitate the inquiry as to the grounds of the alleged errors of the court. But giving the application such consideration as what is presented by the papers warrants, there fails to be disclosed ground for reversing the order appealed from, and for setting aside the verdict.

The order appealed from should be affirmed, with •costs.

Sedgwick, J., concurred.  