
    Joseph F. Terriberry, Appellant, v. Louis Mathot, Respondent.
    First Department,
    February 23, 1906.
    Mistrial — verdict received in absence of presiding justice—when irregularity waived.
    When after the submission of a case to a.jury the trial justice leaves the bench and the verdict is received by another justice of the same court, it is at most an irregularity which may be waived by the parties.
    When no objection is made to the reception of such verdict, but on the contrary the counsel for the defeated party makes various motions which stand over for the consideration of the justice who presided, the irregularity is waived.
    Appeal by the plaintiff, Joseph F. Terriberry, 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 4th day of October, 1905, as modified by an order entered in said clerk’s office on the 30th day of January, 1906, granting the defendant’s motion to have the trial had herein declared a mistrial and to set aside the verdict rendered in favor of the plaintiff.
    
      Walter C. Flanders, for the appellant.
    
      William L. Mathot, for the respondent.
   Patterson, J.

This action .was tried by the court and a jury, Mr. Justice MaoLean presiding. It was submitted to the jury and Mr. Jxistice MaoLean left the bench. The verdict, which was for the plaintiff, .was received by Mr. Justice Amend without objection. The defend-' ant’s counsel then and there made various motions which stood over for the consideration of the justice who presided at the trial. There was no motion then made to set aside the verdict on the ground of a mistrial, but several days after the verdict was rendered the defendant’s counsel moved before Mr. Justice MaoLean to set it aside on the ground of a mistrial in that the verdict was improperly received. Ho actual consent appears in the record to the verdict being received as. it was, but apparently the course pursued was with the acquiescence of the defendant’s counsel. The motion was granted,’ and from the order entered thereupon this appeal is taken.

This order was doubtless made in reliance upon certain decided cases which seem to hold that a verdict in the absence of the justice who presided at the trial is unauthorized and invalid. Those cases, however, have been recently referred to, criticised and distinguished by the Court -of Appeals 'in Dubuc v. Lazell, Dailey & Co. (182 N. Y. 482). It was there held-that a verdict is not void because it was rendered in the absence of the justice who presided at the trial, where it appeared that the parties stipulated in open court, that it should be,received by the clerk, and it was stated in the opinion of the court' that thus receiving a verdict is at most an irregularity which the parties could waiye, while it would undoubtedly be competent for the court to relieve the defendant upon good cause shown.

The absence of the trial judge was a mere irregularity. There was another judge of the Supreme Court present at the time, the verdict was received. The Dubuc case, seems to us ,to control, as has already been intimated in the opinion of the -court by MoLahghuin, J., when this cause was before us-on an appeal from an order granting a new trial (110 App. Div. 370). Under the decision of the Court of Appeals in the Dubuo .case the only matter for o.ur. consideration now is, whether there was a.waiver of any objection that might have been taken to the reception of the verdict. That case was decided upon the' particular facts and it was held that the judgment entered upon the verdict was not void, and under the facts as they appear in this record we reach the same conclusion respecting the case at bar.

The order should be reversed, with ten dollars costs and disbursements, and the motion for a new trial denied, with costs.

O’Brien-, P. J., Ingraham, Laughlin and Clarke, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion for new trial denied, with costs. Order filed.  