
    MOORE v. N. Y. ELEVATED R. R. Co.
    N. Y. Common Pleas,
    
      General Term;
    February, 1890.
    1. .Trials; misconduct of jury; waiver.] Misconduct on the part of some of the jurors in visiting the locus in quo, under a misapprehension of the directions of the court in that regard, is waived by a party continuing the trial without objection after the jurors have openly stated the facts in court.
    2. The same.] It seems that upon proper application the court might have cured the irregularity either by sending all of the jurors to inspect the premises under the charge of an officer, or by discharging the jury from further consideration of the case.
    3. The same.] Upon an application for a new trial on the ground of such misconduct, affidavits of the jurors may be used in opposition to the motion, showing that the moving party was not prejudiced1 by the action complained of.
    4. New trials ; motion where made.] A motion for a new trial on the ground of alleged misconduct of jurors must be made at special term. Such motion is not properly made before the trial judge at the trial term.
    
      Appeal from an order made at trial term denying a motion to set aside a verdict on the ground of the alleged misconduct of some of the jurors.
    The motion was made in the action last reported.
   Bookstaveb, J.

This was a common law action brought to recover damages for the maintenance and operation of the elevated railroad in front of the plaintiff’s premises, 371 Greenwich street. The action had been on trial for more than two days, when a witness for defendant not being present as subpoenaed, the defendant’s counsel requested the court to take its usual recess, it then being near that hour, and suggested that meanwhile the jurors might visit the premises. To this plaintiff’s counsel assented, and the presiding judge gave the jury such permission provided they all went together. Some of the jurors did not understand that they were required to go together, and so but five of them visited the premises. Those five did not return promptly at the time named by the judge for resuming the trial and were reprimanded by him for their tardiness, whereupon they frankly stated the cause for their delay; the presiding judge then reprimanded them for disobeying his direction in the matter, to which they then and there replied that they misunderstood his directions. Plaintiff’s counsel were present at the time, and as appears from the papers and from the argument of this "appeal, fully understood the nature of the irregularity in this respect, but they made no objection to the same, nor did they make any motion in regard to the matter until after the coming in of the verdict. The trial thereupon proceeded and resulted in a verdict for the defendants. Thereafter the plaintiffs made a motion, based upon the affidavits setting forth the irregularity of the jury, before the trial judge at the trial term, who afterwards made the order denying the motion, which is the subject of the present appeal.

We do not think the trial judge had any power to granfc the motion so far as the same was based upon the alleged misconduct of the jury, and that such a motion could only be made to the Special Term. Section 999 of the Code of Civil Procedure provides for a motion made at the same term upon the minutes of the trial judge to set aside a verdict and grant a new trial on the following grounds only, (1) upon exceptions taken, (2) because the verdict is for ■excessive or insufficient damages, (3) because the verdict is oontrary to the evidence, and (4) because it is contrary to law. Sections 1,000 and 1,001 provide for setting aside a verdict upon a motion to be heard • at the General Terra. And section 1,002 enacts in a case not specified in the last three sections that a motion for a new trial must in the first instance be heard and decided at Special Term. It has frequently been held that motions for a new trial upon the ground of irregularity, misconduct of the jury, surprise, newly discovered evidence, etc., must be made at special term. Paulitsch v. N. Y. C. & H. R. R. Co. (50 N. Y. Super. 241) was an appeal from a judgment entered upon the verdict of a jury, and from an order denying a motion for a new trial made at the same term upon the j udge’s minutes. It was held that the alleged misconduct of a juror appearing upon the record, was not available to the appellant upon such appeal because no motion had been made at Special Term for a new trial on that ground. Freedman, J., said, “ The motion for a new trial was made on the minutes of the judge, whereas the motion of a new trial on the ground of objectionable conduct on the part of a juror must be made to the court at Special Term either upon a case settled or affidavits or both. See also Newhall v. Appleton (46 N. Y. Super. 6); Argalls v. Jacobs (56 How. Pr. 167) ; Knickerbocker Ice Co. v. Mayor (3 Law Bul. 6). The cases cited by the learned counsel for the appellant do not sustain the doctrine that the trial judge can entertain a motion for a new trial at trial term on new papers after denying a like motion made after verdict on the minutes. In Smith v. Cohen (12 Daly, 134) the motion was made at a Special Term of the city court after the judge there presiding had denied a motion upon the minutes at trial term when he was presiding there, and this was sustained because it was made at Special Term. The case of Riggs v. Parnell (74 N. Y. 370) does not apply to a motion for a new trial on the ground of irregularity in the conduct of a jury.

But as it does not appear that this objection vtas taken before the judge who heard the motion, we will consider the case upon its merits. The most obvious reason for-denying the motion is that the objection that some of the jurymen did not visit the premises was not made upon the trial, and must therefore be deemed to have been waived. It is the general rule that where a party cognizant of the misconduct of a juryman does not call attention to it at the-first opportunity, he waives the right to afterwards make such misconduct the ground of a motion for a new trial (Valiente v. Bryan, 66 How. 302), and it would be unjust to-permit the party to take his chances of a favorable verdict, and if defeated in that, then claim a new trial on the ground of the irregularity (1 Hayne on New Trial, 99, 103, § 27). The appellant however contends that the irregularity was such that its consequences could not have been avoided had attention been called to it, and that therefore the rule does not hold. In this we think she was mistaken. The irregularity could have been effectually cured in one of two ways, either all of the jurors could afterwards have been sent to inspect the premises under the charge of an officer had plaintiff so requested, or the trial judge would' doubtless on motion have discharged the jury from further consideration of the case. Neither of these courses was pursued by the appellant’s counsel, and we therefore think they effectually waived any irregularity in the conduct of the jurors. Again, from the papers presented, we are con-. vinced that the irregularity did not prejudice the plaintiff’s case in the minds of the jury. Upon the hearing of the motion, the five jurors who visited the premises showed the exact facts as to their visit, which amounted to nothing more than their going to the premises, each of them taking a glass of beer and paying for it himself, with no further conversation with the persons present other than among themselves; and from the remarks made between themselves, it would seem that the result of the visit was rather favorable to the appellant than otherwise. Thé affidavits of the other seven members of the jury tended to corroborate the affidavits of the first mentioned jurymen, and to show that the circumstance of the visit to the premises had no effect on the verdict. It can hardly be disputed that the affidavits of jurors are competent to sustain a verdict although inadmissible to impeach it (Dana v. Tucker, 4 Johns. 487 ; O’Brien v. Merchants’ Fire Ins. Co., 38 N. Y. Super. Ct. 482; Booser v. Wilson, 2 Law Bul. 49; Hackley v. Hostie, 3 Johns. 252).

We therefore think that the motion was properly denied upon the merits, and the order should be affirmed with costs.

Bischoff, J., concurred.  