Maiello ex rel. Maiello v. Johnson

222 N.E.2d 598, 18 N.Y.2d 826, 275 N.Y.S.2d 835, 1966 N.Y. LEXIS 1028

Opinion

Order modified, without costs, by adding a direction that there be a new trial as to both plaintiffs. Reasonably construed in a situation like this, CPLR 4110 (b) requires a new trial when it is learned after the trial that either the injured plaintiff, or her parent who sues as her guardian ad litem as well as in his own right, is related to a juror within the sixth degree.

Concur: Chief Judge Desmond and Judges Ful®, Yaw Yookhis, Burke, Scileppi and Bergan. Judge Keating dissents and votes to affirm in the following memorandum: While CPLR 4110 (b) mandates a new trial in the suit brought by the plaintiff Joseph Maiello in his own right, the same result is not required in the suit brought by the infant plaintiff. Where, as here, it-is shown that the defendant was in no way prejudiced in fact, it is an unnecessary elevation of form over substance to require a new trial as to the infant plaintiff also. The order of the Appellate Division should, therefore, be affirmed.