McHugh v. Jones ( 1939 )

Taylor, J. (dissenting in part).

If we accept as true the statements in the moving affidavits made by other jurors, Mrs. Wake-field was not an unbiased juror and, therefore, the plaintiff did not have a fair and impartial trial, to which he was entitled, before an unbiased and unprejudiced jury. Upon plain principles, however, these affidavits may not be considered. The learned court below was right in disregarding them and in denying plaintiff’s motion based solely thereon. Their effect in the last analysis was to impeach the verdict rendered in favor of the defendant, upon the ground that Mrs. Wakefield was disqualified actually to join in its rendition. Manifestly the stability of jury verdicts will be impaired, or even destroyed, if the practice of receiving jurors’ affidavits, after their verdict has been rendered, to establish the initial and continuing disqualification of a juror, joining in that verdict, to serve as such juror, is approved. The reasons for non-approval of such practice are clearly set forth in the similar case of Payne v. Burke (236 App. Div. 527, 530). In the opinion in that case Edgcomb, J., said (at p. 530): “ I see no reason for making any exception to the general rule in this case. The ultimate purpose to which these two affidavits have been put is to discredit the very verdict to which these jurors gave their assent. The reason for the rule prohibiting the use of such evidence is as applicable here as in any other case.”

In my opinion, the reasons for not receiving jurors’ affidavits which are given in the case cited are potent to work affirmance here. The cases upon which the majority relies, read in the light of their peculiar facts, do not constitute authority for departure from the general rule reiterated in the Payne case (supra).

I concur in the action of the majority with respect to the judgment herein, but as to the order appealed from I dissent and vote to affirm.

Close, J., concurs with Taylob, J.

Order reversed on the law, with ten dollars costs and disbursements, and the matter remitted to the trial court for disposition of the motion after summoning the juror and ascertaining whether she-was eligible to act as such.