Honigsberg v. New York City Transit Authority

• Court: New York City Court
• Citation: 249 N.Y.S.2d 296,43 Misc.2d 1
• Parties: Herman HONIGSBERG and Rosa F. Honigsberg, Plaintiffs, v. The NEW YORK CITY TRANSIT AUTHORITY, Defendant.
• Decision Date: 29 April 1964

Page 296

249 N.Y.S.2d 296 43 Misc.2d 1 Herman HONIGSBERG and Rosa F. Honigsberg, Plaintiffs,
v.
The NEW YORK CITY TRANSIT AUTHORITY, Defendant. Civil Court of the City of New York, New York County, Trial
Term, Part XXXVII. April 29, 1964.

Page 298

Herbert J. Kaplain, New York City, for plaintiffs.

Sidney Brandes, Brooklyn, for defendant, Joseph Hittner, Brooklyn, of counsel.

PATRICK J. PICARIELLO, Judge.

Defendant moves to set aside the jury's verdict as against the law and the evidence, and 'because of the way the verdict was rendered'.

[43 Misc.2d 2] In view of the latter contention urged by the defendant, it behooves the Court to recount the colloquy which took place in the courtroom both before and after the jury returned with its verdict.

'(The Jury returned to the courtroom, at which time the following occurred:)

'THE COURT: You have a request?

'THE FOREMAN: We are at a loss, since we have a difference of opinion as to your charge. Some maintain * * *

'THE COURT: Just what portion of the charge is there a difference of opinion on?

'THE FOREMAN: Whether or not it can be broken down into a degree of guilt or * * *.

'FIFTH JUROR: On awarding of the amount * * *.

'THE FOREMAN: No, no. I forget the word you used.

'THE COURT: Are you referring to contributory negligence?

'THE FOREMAN: Yes. Can it be determined on the degree of negligence, or must it be absolutely on one side or the other?

'THE COURT: If you find that the plaintiff in this case was in any way negligent, then you must find a verdict for the defendant.

'THE FOREMAN: If we find that the defendant was in any way negligent?

'THE COURT: No. You must find that the defendant was negligent.

'THE FOREMAN: Was negligent?

'THE COURT: Was negligent in the manner in which it maintained the subway stairway.

'THE FOREMAN: But there is no degree?

'THE COURT: Was negligent, period. I have already described to you what we mean by negligence. However, notwithstanding

Page 299

the defendant's negligence, if you so find, should you find that the plaintiff was in any wise negligent, in other words, if her conduct was not that of a careful and prudent person in descending the stairs, and if her conduct in any way contributed to the happending of the accident, no matter how slight it might have been, then you must dismiss the complaint.

'THE FOREMAN: It is clear to me, sir, because that was my contention.

'THE COURT: Suppose I read to you that portion of my charge which has to do with the plaintiff's contributory negligence. * * *

'THE JURY RENDERS ITS VERDICT:

'COURT OFFICER: Mr. Foreman, have you reached a verdict?

'MR. FOREMAN: We did reach a verdict.

'COURT OFFICER: What is that verdict?

'THE FOREMAN: We found in favor of the plaintiff.

'COURT OFFICER: And the amount?

'THE FOREMAN: It was decided upon by the Jury, an average method--the lady, I am sorry, I can't recall her name.

'THE COURT: Just tell us the results.

'THE FOREMAN: $3,000 for her.

'THE COURT: Yes.

'THE FOREMAN: $500 for the gentleman.

'MR. MANNES: May I have the jury polled?

'(The jury was polled. The verdict was unanimous.)

[43 Misc.2d 3] 'COURT OFFICER: So say all of you.

'MR. MANNES: Your Honor, please, having heard the Foreman render his verdict, I believe it would be incumbent upon the Court to have the Foreman state again whether it was his report that there was an average verdict--it was done by averaging.

'THE COURT: Is that the way the verdict was arrived at?

'THE FOREMAN: No, sir. The verdict was not arrived at by averaging. The amount of money was arrived at by averaging.

'MR. MANNES: That is what I though. Thank you very much.

'THE COURT: Thank you very much, ladies and gentlemen. You have discharged your duties.

'THE FOREMAN: The verdict was unanimous.

Page 300

'THE COURT: It is quite obvious.

'Tne Jury left)

'MR. MANNES: For the record: first, generally, the defendant moves to set aside the verdict pursuant to all the sections of the CPLR except as to inadequacy. As to that, I move for setting aside the verdict as excessive, more particularly in view of the jury's rendering of the report; and then, in the requestioning of the jury by the court at my request on behalf of the defendant, in view of the fact that that was made by averaging, it certainly was irregular--something a jury is not either permitted to do or should do--which is an indication--strictly in view of the fact of the timing, their questioning--it indicates nothing more than sympathy and a compromise verdict, and this is not the proper way in which a verdict should be arrived at. It was not arrived at on the actual merits of the case, upon which they should really have arrived at it--either yes or no.

'In view of that, I move to set aside the verdict as against the law and the evidence, and because of the way the verdict was rendered.'

The Court shall first proceed to consider the contention raised by the defendant that the verdict was compromised.

A compromise verdict is one which is reached only by the surrender of conscientious convictions on one material issue by some jurors in return for a relinquishment of matters in their like settled opinion on another issue, and the result is one which does not hold the approval of the entire panel. North British & Mercantile Ins. Co. v. Parnell, 53 Ga.App. 178, 185 S.E. 122, 126. So that, while jurors may properly give great weight to the opinions of other jurors, and may make reasonable concessions as a result of argument and persuasion, a verdict arrived at by their surrender of conscientious convictions upon a material question by some of the jurors in return for a like surrender by others is a 'compromise verdict' and invalid. Simmons v. Fish, 210 Mass. 563, 97 N.E. 102, 105, Ann.Cas.1912D, 588.

Apart from the consideration that the foreman indicated in answer to the question posed by the Court that 'the verdict was not arrived at by averaging. The amount of money was arrived at by averaging,' there is nothing in the rendition of [43 Misc.2d 4] the verdict, nor in the verdict itself, which even remotely suggests a compromise.

Since the deliberations of jurors are secret and have always been considered sacrosanct in perpetuating our form of jurisprudence, as indeed they should be, and, ordinarily cannot be shown by jurors' testimony nor can jury rooms be invaded to show that verdict rendered was

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indeed a compromise, the question arises, well then, how can a compromise verdict be detected and set aside?

Patently, when the verdict is irreconcilably inconsistent. Leonard v. Home Owners Loan Corp., 270 App.Div. 363, 785, 867, 60 N.Y.S.2d 78, affirmed 297 N.Y. 103, 75 N.E.2d 261. See also, Reilly v. Shapmar Realty Corp., 179 Misc. 614, 39 N.Y.S.2d 782, revised 267 App.Div. 198, 45 N.Y.S.2d 356; Zittrer v. Pitkin Douglass Corp., Sup .App.T., 29 N.Y.S.2d 210; Pompilio v. McGeory, 283 App.Div. 826, 129 N.Y.S.2d 13; Becker v. Singerland, 282 App.Div. 1106, 126 N.Y.S.2d 425; Parsons v. Great Atlantic & Pacific Tea Co., 233 App.Div. 195, 251 N.Y.S. 360; Zimmer v. Lehnert, 135 Misc. 270, 238 N.Y.S. 88; Kinsey v. William Spencer & Son Corp., 165 Misc. 143, 300 N.Y.S. 391, affirmed 255 App.Div. 995, 8 N.Y.S.2d 529, affirmed 281 N.Y. 601, 22 N.E.2d 168.

Latently, where disproportionate amounts ($5,000 to severely injured wife and $5,000 for her...