Bernard v. Seyopp Corp. ( 1960 )

Memorandum by the Court. Judgment affirmed, with costs to the respondent. The events leading to the final rendition of the verdict do not require that we set it aside. The object of a poll is to ascertain the real intention of the jury. The poll here taken indicated some confusion. Until a jury is .finally discharged the court may instruct it as to the manner in which it could correct a verdict if improperly announced (Warner v. New York Cent. R. R. Co., 52 N. Y. 437; Bogan v. Mullins, 22 App. Div. 117). A jury has the right to alter its original statement so as to conform to its real intention. That is all that was done in this case. It is quite evident from the colloquy that followed the foreman’s announcement that there was a misunderstanding on the part of Juror No. 12 when he stated that the foreman’s announcement did not represent his verdict. It appears that he was in favor of a recovery by the plaintiff, but that he was not in accord with the amount of the verdict. When asked, he readily stated that he was agreeable to the amount as announced by the foreman. It is not clear but that he had come to that conclusion before he came to the courtroom.It would seem from the statement of the foreman that the requisite number of jurors had agreed to the amount prior to the original rendition of the verdict. Moreover, there is no indication that Juror No. 12 was either coerced or required to make up his mind in open court. He merely stated his real intention with respect to the amount reported. Nor do we find any impropriety in the court’s action in directing the jury to return to the jury room to bring back a verdict in accordance with the law. In any event, there was no objection to such procedure by the attorney for the defendant. Nor did he take exception to such action by the court. There is no doubt but had the jury reversed itself and found for the defendant, or have come back with a statement that they could not agree upon a verdict, that the attorney for the defendant would have readily acquiesced in that determination. He should not be in a position, without making a proper objection or exception to the action of the court, to be free to accept or reject the ultimate finding of the jury, depending upon whether it was or was not in his favor. He should have protected his position by proper objection and exception when the court ordered the jury back to the jury room. As indicated, that he failed to do. We construe such failure as an acquiescence in the Judge's action. The defendant should be bound by it.