
    John Kline, Respondent, v. Lyman S. Harding, Appellant.
    
      Jury trial — a verdict rendered after a statement by defendant’s counsel to the jury that if it were rendered he would pay a certain sum to the plaintiff, sustained.
    
    In an action brought in a Justice’s Court to recover a balance claimed to be due the plaintiff for services rendered to the defendant, the evidence tended to establish the fact that, for the purpose of settlement, the defendant, before the suit was commenced, offered the plaintiff ten dollars. The jury brought in the following verdict: “We find that there is no cause of action, providing Mr. Harding, the defendant, pay to the plaintiff §9.50.” This verdict the justice refused to receive, ordering the jury to retire again and instructing them that, if the defendant owed the plaintiff nine dollars and fifty cents, the latter was entitled to a judgment.
    Before the retirement of the jury the defendant’s counsel remarked that, if they . would find a verdict of no cause of action, the defendant would pay the plain. ' tiff the sum of nine dollars and fifty cents. A verdict of no cause of action was afterwards brought in by the jury and was received and docketed by the justice, who, having discharged the jury, rendered judgment thereon in favor of the defendant for nine dollars and seventy cents costs, and the defendant, pursuant to the agreement of his counsel, paid to the justice in the presence of the plaintiff, the sum of nine dollars and fifty cents.
    
      Held, that no irregularity having apparently occurred after the rendition and reception of the verdict, it was the duty of the justice to render judgment against the plaintiff-for costs, and that, in the absence of any objection on the part of the plaintiff to what took place in the presence of the justice, the jury and the parties to the action, the judgment would.be sustained.
    Spring and Adams, JJ., dissented.
    
      Appeal by the defendant, Lyman S. Harding, front a judgment of the County Court of Oneida county in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 6th day of February, 1899, upon 'the decision of the court reversing a judgment of a Justice’s Court rendered upon the verdict of a jury,
    
      Jones, Townsend & Rudd, for the appellant.
    
      Martin & Ives, for the respondent.
   Hardin, P. J.:

Plaintiff brought an action in a Justice’s Court, and in his complaint stated, that he had a cause of action against the defendant for labor and services performed for the defendant between the 17th of April, 1897, and the 1st of November, 1897. The plaintiff claimed that he entered the service of the defendant under an agreement that he was to be paid seventy-five cents a day for his services. Plaintiff admitted on the stand as a witness that he had received from the defendant the sum of eighty-eight dollars, and he claimed-a balance due for such services of the sum of seventy-one dollars.

, The defendant gave evidence upon the trial tending to establish his answer, which was to the effect that he was not indebted to the: plaintiff in any sum. He also gave evidence tending to show that all the plaintiff’s services Were worth was thirteen dollars per month,, and that he had been fully paid for all the services rendered. There was some evidence given upon the trial tending to show that the services rendered by the plaintiff were for the son of the defendant- and not for the defendant, and that the services were understood to-be for the defendant’s son at the time the arrangement was entered into for his employment. There was testimony in behalf of the defendant tending to show that there was no indebtedness on the-part of the defendant to the plaintiff. There was some evidence, however, tending to establish that for the purpose of settlement, the defendant offered to the plaintiff ten dollars before suit was brought.

After the cause was summed .up in the Justice’s Court by the respective counsel, the jury retired and came back with a proposed, verdict which was in the following language, to wit: “We find that there is no cause of action, providing Mr. Harding, the defendant, pa,y to the plaintiff $9.50.”

Thereupon the justice “refused to entertain or receive such a verdict, and ordered the jury to retire again, and said to jury that if the jury had found that the defendant owed the plaintiff §9.50, he, the plaintiff, was entitled to a judgment.”

While the jury was in the court room, and apparently in the presence of the parties and the justice, the defendant’s counsel remarked that if the jury would find a verdict of no cause of action, the defendant would pay to the plaintiff the sum of nine dollars and fifty cents. The jury retired and again returned into court and delivered a verdict of no cause of action. Thereupon the justice received the verdict, entered the same in his docket, and rendered a judgment in favor of the defendant against the plaintiff for nine dollars and seventy cents costs, and discharged the jury. The defendant, after the verdict was received, in accordance with the agreement of his counsel, paid, in the presence of the justice and of the plaintiff, the sum of nine dollars and fifty cents; and it is assumed in the points of the respective counsel that the justice received the nine dollars and fifty cents and applied it towards the satisfaction of the judgment against the plaintiff for costs.

Only one verdict was actually rendered and delivered to, and received by, the court, and that verdict was one for no cause of action, and upon that the Justice’s Court acted and rendered its judgment against the plaintiff, for costs. There was evidence given, as before remarked, which sustains the conclusion reached by the jury. After the verdict was received of no cause of action, it was the duty of the justice to render judgment against the plaintiff for costs, and no irregularity appears to have occurred after the rendition of the verdict. What took place in the presence of the justice and the jury and the parties does not appear to have been objected to by the plaintiff, nor was the justice called upon to make any ruling as to whether the offer made by the defendant to pay nine, dollars and fifty cents to the plaintiff was improper. When the verdict of no cause of action was actually received, it was the imperative duty of the justice to immediately render judgment in accordance therewith. That duty seems to have been discharged by the justice. It would seem to follow that the judgment actually entered by the justice was regular and may be sustained.

If the foregoing views are adopted, the reversal by the County Court of the justice’s judgment should be reversed, and the judgment of the Justice’s Court affirmed.

McLennan and Nash, JJ., concurred; Spring and Adams, JJ., dissented.

Spring, J. (dissenting):

It is very evident that, when the jury first reported to the courts they were of the opinion the defendant was indebted to the plaintiff in the sum of nine dollars and fifty cents. The justice recognized that fact and advised the jury their verdict could not be received as rendered, and if the defendant owed the plaintiff that sum, the latter was entitled to judgment. The defendant’s counsel, seeing the handwriting on the wall which that implied, that not alone a verdict against his client for that sum was imminent, but a bill of costs and the sting of defeat as well, promptly intervened and stated to the jury if they would find a verdict for the defendant, he would pay to the plaintiff nine dollars and fifty cents. This was a positive promise, made directly, to the jury, and was unrebuked by the court. It carried weight with the jury and was-accepted by them as a bargain, for they retired and rendered a verdict in accordance with the suggestion of the defendant’s counsel. That is, the jury performed their part in ratifying and making effective the promise made on behalf of the defendant.

The courts and text writers have been earnest in decrying any improper interference with the jury, and verdicts have been repeatedly overturned because of it. (2 Wait’s Law & Pr. [3d ed.] 620; Baylies N. Tr. & App. 536; Reynolds v. Champlain Trans. Co., 9 How. 7; Oliver v. Trustees First Presbyterian Church, 5 Cow. 283; Kellogg v. Wilder, 15 Johns. 455.)

And it is only necessary to show that the improper interference wascalculated to influence the verdict.” (Thomas v. Chapman, 45 Barb. 98.)

It is urged that there should have been an objection to the remark of the counsel. No question had been asked to which objection could be interposed. The examination of witnesses was not under way. The trial had terminated so far as participation of counsel was concerned; and the statement had been made and'the jury inoculated with the virus of the offer, and an objection would have been a perfunctory act. It will not do, after the defendant has committed gross misconduct which actually controls a verdict, to gloze over his pernicious behavior with the excuse that the plaintiff was not clamorous in his condemnation, when to. condemn would have been futile.

The counsel for the defendant was guilty of attempting to control the jury, and his client, who has gained by this intermeddling, should be held responsible for it.

Immediately upon the second report of the jury, the defendant, in ratification of the conduct of his attorney and in fulfillment of his part of this vicious bargain, paid to the justice the nine dollars and fifty cents. It is claimed that the plaintiff, by again failing to protest, acquiesced in this consummation of the deal. He could not prevent the payment, nor its application. He did not receive the money, nor credit for it, in fact; for, when he appealed, he paid the full costs in the judgment against him.

This presents a very clear infraction of the orderly tidal of cases. The integrity of jury trials cannot be maintained too strictly, and courts should not seek to palliate the conduct of those engaged in the nefarious practice of perverting their verdicts. In this case we have both the flagrant, unblushing attempt, and its immediate effect in the verdict. Every suitor in a court of justice is entitled to the unbiased judgment of the jury. Otherwise there is no safety and no certainty in a trial before that body. The plaintiff did not receive that in this case, for it is very obvious they were swayed by the promise of the counsel.

The judgment of the County Court should be affirmed, with costs to the respondent.

Adams, J., concurred.

Judgment of the County Court reversed, with costs, and the judgment of the Justice’s Court affirmed, with costs.  