Collins v. Ward

240 A.D. 985

Opinion

Order as resettled, granting motion for a mistrial and setting aside the verdict, reversed on the law and the facts, with costs, motion denied, without costs, verdict reinstated and judgment directed to be entered thereon. The defendants in person knew of the facts relied on in advance of the rendition of the verdict. They may not remain silent and speculate upon whether or not the verdict about to be rendered was favorable or unfavorable before disclosing the facts upon which they sought a mistrial. Defendants’ counsel had an opportunity to move upon the facts relied upon in advance of the rendition of the verdict. Under the circumstances, it was, therefore, improper to entertain or grant a motion for a mistrial after the verdict had been rendered. The casual view of the scene of the accident by two of the jurors, in view of what had been said during the trial, may not be said to have been prejudicial. We have examined the record to determine whether or not the setting aside of the verdict might properly be sustained on the ground that it was against the weight of evidence or that the verdict was excessive. We find that the setting aside of the verdict on either of these grounds may not be sustained. Lazansky, P. J., Kapper, Carswell, Tompkins and Davis, JJ., concur.