Moore v. N. Y. Elevated R. R. Co.

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

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

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

Bischoff, J., concurred.