
    Richard Slater, Respondent, v. United Traction Company, Appellant.
    Third Department,
    March 8, 1916.
    Trial — verdict — effect of false statement by juror on examination.
    Where a juror upon his examination stated that he had no prejudice against a negligence action, but upon his examination in another ease in the same court two days after a verdict in the first case, he stated that he was prejudiced against such an action, such statement may be considered as showing that his statement upon the first trial was untrue, and is a sufficient ground for setting aside the verdict.
    The. rule that the statement of a juror cannot be received to vitiate his verdict has no application under the circumstances. It merely excludes affidavits or statements of jurors tending to show mistake or error in respect to the merits or irregularity or misconduct, or that they mistook the effect of them verdict and intended something different. Howard, J., dissented.
    Appeal by the defendant, United Traction Company, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Rensselaer on the 4th day of September, 1915, vacating and setting aside a verdict of a jury herein and the judgment entered thereon.
    
      John E. MacLean [John T. Norton of counsel], for the appellant.
    
      Eayner & Ward [John B. Holmes of counsel], for the respondent.
   Kellogg, P. J.:

Upon the examination of the persons called as jurors in this case each juror was asked if he had any prejudice against a negligence action. Juror Haswell replied that he had not. He was accepted as a juror, and a verdict was returned March ninth in favor of the defendant. On March eleventh he was called in another case in the same court, and upon a like examination stated that he was prejudiced against such an action, and was excused from service. Upon plaintiff’s motion the verdict was set aside by the presiding judge upon the ground that the juror had by a false answer been permitted to sit in the case. The juror attempts to explain his answers by saying he answered the question before he fully realized its import, and then had not sufficient confidence in himself to correct the answer. He does not claim that his attitude about such actions had changed in the meantime. The trial judge recollected the facts, and the court repeated the question to the juror, and was not satisfied with his explanation and set the verdict aside. The order rested in the sound discretion of the court. Every suitor is entitled to a fair trial before unpreju-1 diced jurors, and if a juror is permitted to sit on account of a | false answer given by him to a material question, it is a fraud | upon the court and the parties, and the verdict may well be ", set aside.

It is urged, however, that there is no evidence that the answer to the question in the first case was untrue except the statement of the juror in the second case, and that the state-\ ment of a juror cannot be received to vitiate his verdict. That j rule has no application here. It excludes affidavits or state- i ments of jurors tending to show mistake or error of the jurors j in respect to the merits, or irregularity or misconduct, or that j they mistook the effect of their verdict and intended something \ different.” (Dalrymple v. Williams, 63 N. Y. 361, 363.) The “ statement of the juror showed to the satisfaction of the court that he caused himself to be received as a juror by a fraud practiced upon the court and counsel. His false statement resulted in his becoming a juror in the case. His statement! did not relate to anything that took place between him and his I fellow-jurors, or anything that took place with reference to the l deliberation or action of the jury, but related to his being permit- l ted to sit upon the jury. We think, therefore, that his answer in the second case might well be considered as showing that his answer upon the first trial was untrue. The order, therefore, should be affirmed, with costs.

All concurred, except Howard, J., dissenting.

Or4er affirmed, with ten dollars costs and disbursements.  