Tartacower v. New York City Transit Authority

• Decision Date: 24 December 1957
• Citation: 9 Misc.2d 606,169 N.Y.S.2d 695
• Parties: Ida TARTACOWER v. NEW YORK CITY TRANSIT AUTHORITY.
• Court: New York Supreme Court

Page 695

169 N.Y.S.2d 695

9 Misc.2d 606

Ida TARTACOWER v. NEW YORK CITY TRANSIT AUTHORITY.

Supreme Court, Special Term, Kings County, Part I.

Dec. 24, 1957.

Berman & Tannenbaum, for plaintiff.

Daniel T. Scannell, New York City, for defendant.

BRENNER, Justice.

Motion to set aside the jury's verdict in favor of defendant in an action to recover for personal injuries, upon the ground that one of the jurors visited the scene of the accident and reported his observations to the jury during their deliberations.

The supporting affidavit of plaintiff's trial attorney states that immediately following their discharge, one of the jurors, Scanlan approached the affiant and a colleague and informed them in the presence of Raymond A. Sexton, Esq., the defendant's trial attorney, that another juror, Reznik, had visited the scene of the accident the evening before the verdict was rendered and had reported his observations to the jury, on the following day, during the deliberations of the jury. Plaintiff's trial attorney further states that he then approached. Reznik, who admitted all this in the presence of his colleague and Mr. Sexton. Mr. Sexton's opposing affidavit avers that he did not hear juror Reznik state that he had reported his inspection to the other members of the jury, during their deliberations, nor did he, Mr. Sexton, hear juror Scanlan attribute such alleged statement to Reznik, but that, on the contrary, Reznik stated that he told the jury of the inspection after the deliberations were concluded and a vote on the verdict had been taken.

Statements made outside of court by a juror following trial, and affidavits made by a juror after the trial, may not be used to impeach the verdict of the jury and are not competent proof to establish misconduct of a juror (People v. Sprague, 217 N.Y. 373, 111 N.E. 1077; Payne v. Burke, 236 App.Div. 527, 260 N.Y.S. 259; Davis v. Lorenzo's, Inc., 258 App.Div. 933, 16 N.Y.S.2d 624). The rule is founded on sound public policy (see Payne v. Burke, supra, 236 App.Div. at pages 529, 530, 260 N.Y.S. at pages 261, 262). Affidavits of third parties containing statements made to them by a juror or jurors subsequent to the trial are likewise incompetent (People v. Sprague, supra; Gregory v. Bijou Theater Co., 138 App.Div. 590, 122 N.Y.S. 1085; Bennett v. Nazzaro, 144 Misc. 450, 258 N.Y.S. 828).

Plaintiff concedes that affidavits of the attorney and of the jurors are inadmissible as proof of misconduct; however, she contends that knowledge of a juror's misconduct can be made known in other ways that are admissible, citing Curry v. Quait, 100 Misc. 604, 166 N.Y.S. 367 in support of his position. In that case affidavits of disinterested parties were held to constitute such competent proof. Plaintiff, however, does not submit disinterested proof here. She argues that the statement contained in Mr. Sexton's affidavit constitutes a concession that the juror Reznik did actually visit the scene of the accident....