O'Brien v. Mix

14 A.D.2d 832, 220 N.Y.S.2d 652, 1961 N.Y. App. Div. LEXIS 8303

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 26, 1961
• Status: Published

Opinion

Memorandum: Upon the polling of the jury the court insisted that the question be propounded as follows: “Members of the Jury, we are asking now if it is the verdict of this jury 11-1 that the plaintiff Genevieve O’Brien recover $750 against the defendant. Go ahead.” This was an erroneous way in which to ask the question. This manner of polling caused confusion and left doubt as to the actual determination of the individual jurors at the moment of polling. The regular and approved method is succinctly stated in Carmody-Wait (vol. 6, p. 664): “ § 21. Polling the Jury.— After the jury’s verdict has been received, and before it is entered, the counsel against whom it has been rendered has a right to poll the jury, that is, to ask each juror individually whether or not the verdict read or pronounced is his verdict. All or any of them have a right at such time to dissent from a verdict to which they have previously agreed.” The procedure adopted in the instant appeal prevented a juror from expressing any dissent which he might have had at the time of polling. Regrettable as it is, under all the circumstances here presented the only way in which this error can be corrected is by a new trial. (Appeal from judgment of Erie Trial Term for plaintiffs in an automobile negligence action.) Present — Williams, P. J., Bastow, Goldman, Halpern and MeClusky, JJ.