
    Louis Fleischmann, Respondent, v. Mendel Samuel and Others, Comprising the Firm of M. Samuel & Sons, Appellants.
    
      Misconduct of a juror—motion for a new trial, before whom, made—measure of dam■ages in an action for conversion.
    
    The provisions of section 1002 of the Code óf Civil Procedure, requiring that a motion for a new trial be heard at a Special Term held by the judge who presided at the trial, and be noticed within the time limited by that section, apply only to a motion “founded upon an allegation of error in a finding of fact or ruling upon the law, made by the judge upon the trial,” and not to one based upon the misconduct of a juror.
    The measure of damages in an action for the conversion of an engine is ordinarily the value of the converted article at the place of conversion, and this rule is not altered by the fact that, at the time of the conversion, the owner had not actual possession of the engine, but had left it in a building owned by other parties by their permission, but in such case the jury are not authorized to assume in estimating the damages that the engine could be kept by a purchaser thereof in such building.
    Appeal by the defendants, Mendel Samuel and others, comprising the firm of M. Samuel •& Sons, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 29th day of October, 1896, upon the verdict of a jury, and also from an order bearing date the 28th day of October, 1896, and entered in said clerk’s office, denying the defendants’ motion for a new trial made upon the minutes.
    Appeal by the defendants, Mendel Samuel and others, comprising the firm of M. Samuel & Sons, from an order of the Supreme Court, made at the Kings County- Special Term and entered in the office of the clerk of the county of Kings on the 10th day of February, 1897, denying their motion -for a new trial upon the ground of the alleged misconduct of a juror.
    
      Edwa/rd- W. 8. Johnston, for the appellants.
    
      M. Jlallheimer, for the respondent.
   Willard Bartlett, J.:

These appeals were argued together, and it will be most convenient to consider and decide them together.

The action was brought to recover $600 damages for the alleged conversion of an engine. The defense was á general denial. The case was tried in Brooklyn before Mr. Justice Osborne and a jury. After the adjournment' of the court on the first day of the trial, the foreman of the jury was observed in conversation with the plaintiff. The attorney for the defendants called the. attention of Mr. Justice Osborne to this fact, whereupon the judge told the juror that he was guilty of a gross impropriety, and asked him what he was' saying to the plaintiff, to which the juryman responded : “ I just said it was a long sit to sit here all day.” The next morning the defendants’ attorney made a formal motion for leave to withdraw-a juror and for a new trial on- account of the foreman’s misconduct, and the presiding judge thereupon put a number of questions to the juror himself, to the plaintiff, and to one of the court officers, as to what had happened on the afternoon previous. The foreman declared that lie never saw the plaintiff before this case; that he did not recognize him as the plaintiff, or he would not have spoken to him, and that he simply said it was a long day to sit in court and his back ached from sitting there. The plaintiff’, on the other- hand, denied having spoken to the juror, and said the juror did not speak to him. The court officer did not notice that anything passed between them. . At the conclusion of his investigation, Judge Osborne said he did not think that there had been any such communication between the foreman and the plaintiff as-might be deemed calculated in any degree to impair the verdict which might be rendered by the jury, and he directed the trial to proceed. - The jury subsequently rendered a verdict of $400 for the plaintiff.

A motion for a new trial on the ground of this juror’s misconduct was afterward made upon the case as settled and upon additional affidavits at a Special Term held by Mr. Justice Gaynor, and it is from an order denying that motion that the first appeal is taken.

The plaintiff’s counsel objected that the motion was required by section 1002 of the Code of Civil Procedure to be heard at a Special Term held by the judge who presided at the trial and also that it must be noticed within the time limited by that section. These objections were properly overruled. They apply only where the motion is founded upon an allegation of error in a finding of fact or ruling upon the law, made by, the judge upon the trial.” A motion based upon a juror’s misconduct is not subject to any such restrictions. The correct practice is to make the application at Special Term. (Moore v. N. Y. Elev. R. R. Co., 15 Daly, 506; Paulitsch v. N. Y. C. & H. R. R. R. Co., 50 N. Y. Super. Ct. 241.) It is always proper, however, to call the attention of the trial judge to the objectionable occurrence, if ascertained before the close of the case, as in that event he may see fit to allow a juror to be withdrawn. But at Special Term any judge may hear a motion for a new trial on this ground. We are of the opinion, therefore, that the application in the present case was seasonably made in the right place and that Mr. Justice Gaynor had jurisdiction to hear it.

We also think that' he decided correctly, and we agree with him that, in the light of all the proof, the act of the juryman appears at most to have been an inadvertent indiscretion. There is no reason to believe that it had the slightest effect upon the verdict. This view accords with what was evidently the impression made upon the "mind of the trial judge, who saw the parties at the time and who carefully investigated the occurrence by a personal examination of those concerned in it, reaching the conclusion that no wrong had really been done. To that conclusion we think great weight should be given by an appellate tribunal.

Upon the appeal from the. judgment the only point pressed upon our attention relates to the measure of damages. The engine which the defendants converted had been left by the plaintiff in a building on Montrose avenue in the city of Brooklyn with the permission of the owner of the place. The proof does not show any relation between the defendants and this building or its owner; but the defendants appear to have acquired the engine from some third parties who neither owned it nor had any right to sell it. The conversion was clearly established. The trial judge charged the jury in substance that the measure of damages was the' value of the engine at the time when and the place where' it was converted. ■ This instruction is criticised, so far as it relates to 'the place at which the value is to be ascertained, the ajipellants insisting that the plaintiff could recover the value of the engine only after it was taken but of the building on Montrose avenue, inasmuch as he did not own that building but merely had permission to leave the engine there for the time being. We do not find any exception in the record which raises this point, but even if there was one it would not help the appellants, for the rule which the court laid down was correct. The' value of the converted article at ‘the place of conversion is ordinarily, the true measure of damages. (See Tiffany v. Lord, 65 N. Y. 310.) In the case at bar this place was that part of Brooklyn where the engine.was situated when the defendants took it, and where the plaintiff himself could have delivered it to a purchaser, if he had sold it. The instruction did not assume that the engine could be kept by the purchaser in the building; and if the defendants had any apprehension that it would be so understood by the jury, they should have requested.the court to charge explicitly on that point, and the request would undoubtedly have been complied with.

The verdict is assailed a,s excessive, but while we should have been better satisfied with a smaller recovery we cannot shy that there is not sufficient evidence to sustain the jury’s estimate of the value of the converted engine.

The judgment and the orders appealed from must be affirmed-.

All concurred, except Goodrich, P. J., not sitting. ■

Judgment and order denying motion for new trial on the minutes affirmed, with costs. Order denying motion for new trial on the ground of misconduct of juror affirmed, with ten dollars costs and disbursements.  