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Duerr v. Consolidated Gas Co.

104 A.D. 465 Court N.Y. App. Div. English

Delivered by O’Brien, J.:

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p. 465
Michael Duerr, Appellant, v. Consolidated Gas Company of New York, Appellant, Impleaded with William J. Logan and Frank J. Logan, Respondents.

Headnote

Power of ike court to amend a verdict in a substantial particular—it is limited to the term of the court at which the verdict was rendered.
A jury, impaneled on the trial of an action brought against the Consolidated Gas Company of New York, William J. Logan and Frank J. Logan, brought in a sealed verdict in favor of the plaintiff for the sum of $4,000 “ against the Consolidated Gas Gompany.” Counsel for the defendants Logan then stated:
' “And, of course, the verdict is in favor of the defendants Logan,” to which the court replied: “ The verdict is against the Consolidated Gas Cómpany, and excludes the Logans, of course.” No steps were taken at that time or during the remainder of the term to change or alter the form of the verdict, and it was recorded in the clerk’s minutes as announced by the jury.
Two years later, at a Special Term presided over by the judge who presided at the trial, an order was made on the motion of the defendants Logan to amend the clerk’s minutes by inserting therein after the words “against the Consolidated Gas Company” the additional words “and in. favor of the defendants’ William J. Logan and Frank J. Logan.”
Seld, on an appeal taken by the plaintiff from the order, that it, in effect, altered or amended the verdict, and that the Special Term had not power to grant it;
That the power of the court or jury to amend a verdict in a substantial particular expires with the term of court at which it is rendered.
p. 466
' Appeal by the plaintiff, Michael Duerr, and by the. defendant the Consolidated Gas Company'of New York, from an order of the. Supreme Court, made at the New York Spécial Term and entered in the office, of the clerk of-the county of New York on the 21st. day of' February, 1-905, as resettled by an order entered in said clerk’s office on the 6th day of March,. 1905, granting a motion-made by the defendants Logan to amend the minutes of the clerk of the Trial Term, Part Y, for the December term, 1903, in the ■ above-entitled action. -
Ferdinand E. M. Bullowa, for the plaintiff, appellant.
David McClure, for the appellant Consolidated Gas Company.
Frank Verner Johnson, for the respondents.

In December, 1903, this action was tried at a Trial Term of, the Supreme Court, and. the jury rendered'a,sealed verdict, as-appears from the stenographer’s minutes of the trial, in favor of the plaintiff for the sum of $4,000 “ against the Consolidated Gas Company,,w Counsel for defendants Logan then stated: “And, of -Course, the verdict is in favor of thi defendants Logan,” to which the court replied: “ The verdict is against" the Consolidated Gas Company,. and1 excludes the Logans* of course.” No steps were taken at that time" to "change or álter the form of the verdict, and it was recorded in the. clerk’s minutes'as announced by the jury.

Over two years afterwards, arid in March, 1905, the defendants Logan moved "at Special Term to amend the clerk’s minutes by inserting therein after the words, “ Against the Consolidated Gas Company,” the additional words, “ and in favor of the defendants William J. Logan and Frank J. Logan.” This motion was granted, and from the order- entered thereon this appeal is taken.

In our opinion’the court at Special Term had "rio power to make the order. While the motion whs nominally to correct the clerk’s minutes of the trial, it was in substance an application to alter., pr amend the verdict of a jury, announced by them, and this is the effect of the order, appealed" from. . Although the jury had agreed upon and prepared a sealed verdict, and this verdict had been announced and entered in the minutes of the clerk, it was neither .final nor conclusive if -it failed to express ,the true conclusion at

p. 467
which they had arrived. It cannot be doubted that, before they severed their relation as jurors to the case, their power over the-verdict remained, to the extent, at least, that’ they had the right to alter it so that it should conform to their real intention and purpose. (Warner v. N. Y. C. R. R. Co., 52 N. Y. 437 .) But if there was any objection to the verdict as announced, upon the ground that it failed to express the intent or conclusion of the jury, that objection ought properly to have been urged at the time the verdict was announced and before it was recorded, so that the jury might have been sent back to reconsider and correct it as they saw fit, either in form or substance. (Brigg v. Hilton, 99 N. Y. 531 .) The defendants Logan, however, took no steps either at that time or during the term of the court to have it corrected, if they considered it in any respect defective. While it has been held that even-though the jury is discharged, the court has the power to correct the verdict so as to make it conform to the real determination of . the jury, if the motion is made at the term of the court at which, the verdict was rendered (Hodgkins v. Mead, 119 N. Y. 166 ; Dalrymple v. Williams, 63 id. 361; Lowenstein v. Lombard, Ayres & Co., 2 App. Div. 610 ; Dean v. Mayor, 29 id. 350 ; Cruikshank v. Cruikshank, 38 id. 580), nevertheless we find no-authority which holds that a court other than the one which tried the case, or that court after the term is ended, has the power to correct in a substantial particular the verdict as actually rendered.

In Dalrymple v. Williams (supra) the foreman of the jury announced a general verdict in favor of the plaintiff and against both defendants, and it was so entered,. Application was made upon the same day to the judge holding the Circuit, on behalf of one of the defendants, to correct the verdict on the ground that the announcement of the foreman was made through mistake and inadvertence, and that the true verdict agreed upon was in favor of the defendant who made the application and against the other' defendant. The court granted the motion upon the affidavits of the jurors, and upon appeal this order was .affirmed ; but it was said: “ Applications of this character will be rare, will be made before the judge presiding at the trial and while the whole subject is fresh- in the minds of all, and never will be granted except in. cases free from reasonable doubt.” .

p. 468
In Dean v. Mayor (supra) Mr. Justice Ingraham, expressing the opinion of this court, said: “A motion to" correct the verdict ‘should be ’made to the court before whom the case was tried. A verdict once entered by the jury and recorded in court becomes the verdict of the court, and any motion to correct that verdict must be made to the court in which the verdict- was recorded. • There, is no express provision that gives the . Special Term of the Supreme Court power to change the record of the Trial Term, and I do not know where such power is given to -it.”

The. fact that this application was made to the particular j udge who sat at Trial Term when, the case ..was'heard does not alter the situation. His power, after the Trial Term is ended-, is no greater than that of any other judge at Special Term, even though he naturally has more knowledge of what actually took place at the trial.

We think that the court had no power to make the order appealed from, and that it must be reversed with ten dollars costs and disbursements, and the motion' denied, with ten dollars costs to each o.f the appellants.

Yan Brunt, P. J., Ingraham, McLaughlin and Hatch, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs to each of .the appellants.

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