
    Elizabeth Conrey, Respondent, v. Metropolitan Street Railway Company, Appellant.
    
      A sealed verdict ‘for defendant, with recommendation, to the court to award plaintiff §300,” constitutes a mistrial.
    
    After a case had been submitted to a jury with directions to render a sealed verdict the jury agreed upon their verdict, reduced it to writing upon a blank given to them for that purpose, sealed and delivered it to their foreman and separated for the night. At the opening of the court the next morning the jury appeared and presented their verdict, which read as follows: “The jury say that they find a verdict for defendant, with recommendation to the court to award plaintiff §300 as a compensation for her losses.”
    The court ruled that it was impossible to determine' what the jury intended by the verdict as reported, and that, inasmuch as they had separated during the night, they should be discharged. This was done and an order was made declaring that there had been a mistrial of the cause.
    
      Held, that the conclusion reached by the jurors was not stated with sufficient definiteness to entitle cither party, as a matter of right, to the entry of a verdict thereon;
    That the trial court would have been authorized to return the verdict to the jury for correction, but that as this course had not been pursued there had been a mistrial of the case.
    Appeal by the defendant, the Metropolitan Street Railway Company, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 13th day of May, 1902, declaring that there had been a mistrial of the cause and restoring the same to the day calendar.
    
      Gharles F. Brown, for the appellant.
    
      Gilbert D. Lamb, for the respondent.
   Laughlin, J. :

This is an action to recover damages for personal injuries alleged to have been caused by the negligence of the defendant. After the case had been submitted to the jury the court ordered a sealed verdict. The jury agreed upon their verdict, reduced it to writing upon a blank submitted to them for that purpose, sealed and delivered it to their foreman and separated for the night. The jury appeared at the opening of court the next morning, and, through their foreman, presented their verdict, which, omitting the title of the action and the signatures of the jurors, was as follows : “ The jury say that they find a verdict for defendant, with recommendation to the Court to award plaintiff $300 as a compensation for her losses.” The court declined to receive this paper as a verdict, whereupon defendant’s counsel requested the court to direct the clerk to enter it as a verdict for the defendant. This motion was denied. The plaintiff’s counsel moved the court for an order declaring the trial a mistrial and restoring the case to the day calendar. The court announced that it was impossible to determine what the jury intended by the verdict as reported, and that inasmuch as the jurors had separated they should be discharged.

The jury having been discharged, it is manifest that there is no means now available by which their intention can be ascertained except from the paper which they presented to the court. We have no doubt that the trial court would have been authorized to send the jury back to correct their verdict and put it in definite legal form notwithstanding the fact that they had separated over night (Proff. Jur. § 460); but it is too late now to accomplish that result. It is clear that there has been a mistrial of this case. It cannot be said as matter of law that this is a verdict for the defendant, and the recommendation treated as surplusage and disregarded. It may be that the jury wrote the word “ defendant ” by mistake and that they intended it as a verdict for the plaintiff. Not being familiar with the preparation of sealed verdicts and being required to insert in the blank form both the party in whose favor they found and the amount of the damages, if any, they may have intended to say that their verdict was for the plaintiff, and instead of merely specifying the amount put it in form of a recommendation. But whether this he so or not, the sealed verdict was not in proper form and the conclusion reached by the jurors was not stated with sufficient definiteness to entitle either party as a matter of right to the entry of a verdict thereon without correction by the jury. We cannot correct this verdict.

It follows that the order should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., Patterson and McLaughlin, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  