Nardone v. Miller , 33 N.Y.S.2d 271 ( 1942 )

Action to recover damages for personal injuries sustained

by respondents in a collision between an automobile in which they were riding and a truck owned by the estate of Edward H. Miller, and by plaintiff Anthony Nardone to recover also for property damage and loss of services. Judgment unanimously affirmed, with costs. While the practice is for the court to consult with the jury or a juror in the presence of counsel, we are of opinion that the incident involving ' the inquiry by the court of one of the jurors in chambers, in the absence of counsel, as to his physical ability to continue the trial, was not prejudicial to the appellant and was harmless. Appeal from denial of motion for a new trial dismissed, without costs. No order denying such motion appears in the record. Present — Hagarty, Johnston, Adel, Taylor and Close, JJ.