Christie v. Bowne — 27 N.Y.S. 657

Majority

p. 657

(76 Hun, 42.)

CHRISTIE v. BOWNE.

(Supreme Court, General Term, Second Department.

February 12, 1894.)

Headnote

Trial—Receiving Verdict in Another Room.

A verdict is not invalidated by the fact that it was received in a different room from that in which the trial was had.

Appeal from special term, Kings county.

Action by Daniel E. Christie against Robert Bowne. From an order denying a motion to set aside a verdict in favor of plaintiff and the judgment entered thereon and all proceedings taken thereunder, and for a new trial on the ground of the alleged invalidity and irregularity of said verdict, defendant appeals. Affirmed.

Argued before DYKMAY and PRATT, JJ.

Charles Strauss, for appellant.

Henry L. Brant, for respondent.

The affidavits in support of the motion allege that the verdict was received in a private room, which is contradicted by the opposing affidavits. The court have personal knowledge that the room described is a public room occupied by this court for many years for the hearing of motions and the trial of causes. The facts resolve themselves to this: That the trial was begun in one room, and finished in another, across the hall from the first. This did not prejudice any right of the defendant. Besides, it was the defendant’s fault that the verdict was taken in his absence. It was his duty to remain with the judge, and not the judge’s duty to keep the jury in waiting until defendant’s attorney arrived, especially as he left .no word with the judge that he should be sent for when the jury came in. Again, we think, if the defendant had any merit in this matter, he waived it by not moving at once, and by making other motions not consistent with his claim upon this motion.' Order affirmed, with costs.