Apartment House Partly Abutting on Elevated Railroad.

EASEMENTS, this action damages were allowed for alleged injuries to the apartments which had no frontage on Ninth avenue as well as to the two which had such frontage; and the question presented upon this appeal is whether such an allowance can be justified.

(Supreme Court of New York, General Term, First Department, June, 1894. Present: Hons. Charles H. Van Brunt, P. J.; Alton B. Parker and George C. Barrett, J. J.

Sara J. Keene, respondent, vs The Metropolitan Elevated Railway Company et al., appellants. Appeal from judgment entered after trial at Special Term. B. Tolles, for appellants. JA. Murray, for respondent. VAN BRUNT, P. J.

It seems to us that it cannot. The three apartments which fronted on Fiftyseventh street had no easements of light, air and access upon Ninth avenue. While damages have been allowed where premises are so situated that they are to be considered as a single parcel, although the total frontage might not be upon the street occupied by the elevated railway, yet, where such premises are improved by buildings distinct within themselves, some of them having no frontage upon the avenue occupied by the railroad, it is difficult to see upon what theory an award for the destruction of easements upon the avenue upon which such buildings have no frontage can be predicated. In the case at bar the three apartments have no frontage upon Ninth avenue, the street occupied by the railroad. They, therefore, can have no easement in the light, air and access upon such avenue, as such easements have been held to beThe apart

This action was brought to obtain an injunction against the operation of defendants' railroad or the payment of damages because of the interference with easements in the street in front of the plaintiff's premises. The premises in question are situated at the southwest corner of Ninth avenue and Fifty-seventh, street, having a frontage on the avenue of 125 feet and on the street of 100 feet. The defendants have constructed and maintained and are operating an elevated railroad on Ninth avenue. The building upon the premises in question was constructed in 1880 and 1881, and was intended for use and is now used as an apart-long to the abutting owner. ment house. The building is divided into ments in question, therefore, do not seem five distinct and unconnected apartments to come within the class to which relief on each floor, except the first and eighth has been granted in actions of this charfloor. These apartments are parallel acter. with Ninth avenue, except one which fronts on Ninth avenue and runs across the rear of the other apartments. The apartment at the corner of Ninth avenue and Fifty-seventh street and the apartment fronting on Ninth avenue the rear of the other

It has been urged that because of the fact of there being unity of construction in the building and unity of ownership, a different rule should obtain. But it is apparent that, notwithstanding the unity in of construction and unity of ownership, apartment these premises are occupied as distinct are the only ones fronting on and separate buildings, just as much as In the award made in though there was no architectural unity

Ninth avenue.

VAN PELT, J.

At the May term, 1890, this cause was tried to a jury. After deliberation the

As between dividends due from the receiver of a corporation and a claim against the stockholder, set-off was allowed in Merrill vs. Cape Ann Granite Co. 23 L. R. A. 313, and extensive an-jury returned into court, and being asked notation shows the general rule in favor if they had agreed upon a verdict, the of set-off against receivers and assignees foreman replied that they had, and for creditors, with its limitations, incluhanded to the clerk a paper purporting ding matters as to immature and contingent claims and commercial paper. to be such verdict, in the words and figures following, to-wit: "We the jury, upon the issues joined between the parties in this case, do find for the plaintiff and assess his damages at twenty-two and fifty dollars ($22.50.)

The general subject of set-off against commercial paper is illustrated in the case of Vann vs Marbury, 23 L. R. A. 325, and the lack of uniformity of the decis ions on this subject is shown in the annotation to the case.

So many instances have occurred in recent years of a dead-lock between houses of the legislature, or of conflict between the legislative and executive department, that decisions defining the relative powers of governor and legislature have become very important. In People, Richardson, vs. Henderson, 22 L. R. A. 751, the Supreme Court of Wyoming decides that the appointment by the governor of an officer to fill a vacancy until after the next meeting of the legislature" contiuues after the legislature meets until a successor to such office is chosen, and that the meeting of the legislature does not create another vacancy.

JACOB STILLBAUGH, Foreman." The clerk opened and read the verdict, reading the amount "Twenty-two hundred and fifty dollars." The court then inquired of the jury if the verdict as read by the clerk was their verdict, and each and all of the jurors assented to the verdict as read, in the presence of the court and bystanders. Thereupon the jury were discharged and separated. On the morning of the next day it was first discovered by the clerk that the verdict did not read "twenty-two hundred and fifty dollars," but "twenty-two

and fifty dollars." and that a dot 1891, and the Court held that the Com appeared between the figures 22 and 50. mon Pleas had erred in ordering said amso that while the written portion of the endment. and ordered that the judgverdit was ambiguous, the figures ment which had been entered on the seemed to make it a verdict for only amended verdict be set aside. That $22.50. Upon the discovery of this fact Court, however, made no order

the plaintiff at once filed a motion to setting aside the verdict, nor directing reform or correct the verdict so that the a new trial; but simply remanded the same should read "Twenty-two hundred case to this Court for further proceedings. and fifty dollars ($2250);' and on the next Thereupon defendant filed its motion day, being the second day after the in this Court asking that judgment be return of the verdict, the plaintiff also entered on said verdict for the sum of filed a motion for a new trial assigning $22.50. This motion is resisted by the the alleged mistake in the verdict as one plaintiff. In opposition thereto plain of the grounds of said motion. In sup- tiff has offered again the affiport of the motion to correct the verdict davits used in evidence on the plaintiff filed the separate affidavits of former motion. These affidavits clearly each and all of the twelve jurors, and prove the following facts:-1. That the his own affidavit as to what occurred actual sum agreed upon by the jury as when the verdict was returned into their finding was $2,250. and not $22.50. court. In opposition the defendant filed the affidavit of the clerk. These affidavits were all the evidence offered upon the motion.

2.

That they directed their clerk to prepare a verdict for $2,250, and believed that he had done so. 3. That the foreman This motion was signed the paper believing it to be a heard and considered by the court verdict for that sum. 4. That when the (Judge Vanderver then presiding) at the verdict was handed to the clerk in open same term, and sustained, and an order Court, he read it as cailing for tha was entered directing that the verdict be amount. 5. That as thus read and unreformed and corrected so as to stand as derstood, it was assented to by the jury, a verdict for twenty-two hundred and and received by the Court. 6. That the fifty dollars ($2250.)" To this order mistake in writing and receiving the verdefendant excepted. The motion to dict was not discovered until the jury had correct having been sustained, plaintiff separated, and not in fact until the next withdrew his motion for a new trial. day. Defendant objects to the competThe defendant had also filed a motion for a new trial, and when the order was made correcting the verdict, defendant's motion for a new trial was overruled, and judgment entered for $2250. Defendant having taken a bill of exceptions filed a petition in error in the Circuit Court assigning as one of the grounds In the case of Jackson vs Dickinson 15 of the petition that the Court erred in ordering the verdict to be amended. Johns. 309 (8 Am. D. 236.) the testimony The case was heard at the April terin of the jurors was received to prove, that

ency

of these, affidavits.

The first question of law which arises is, Are the affidavits of the jurors admissible to prove the mistake which occurred in writing the verdict, and the mistake of the clerk in reading it when it was returned into Court and received?

by mistake, the verdict was incorrectly was an action of trespass against several entered, and was not the verdict in fact defendants. The jury returned a general found. The Court say: "That the verdict against all of them and left the jurors have dep sed must be noticed by court room. Held, it was competent för the Court, because their affidavits are not them on returning immediately into as to what transpired while deliberating Court to show that the verdict had been on their verdict, but as to what took given through mistake, and to correct it place in open Court in returning their by finding against some of the defendants verdict, and shows that the clerk made a only. The Court say: "It has never mistake in entering, or the Court in been held to be repugnant to the principles directing a different verdict. The inforor policy of the rule to permit the jury mation afforded by the affidavits of the to fortify and sustain their verdict or to jurors is not to impeach, but to support show by affidavits the verdict which they the verdict really given by them." really did find," The case of Dalrymple vs Williams 63 N. Y., 861, (20 Am. R. 544) is an important and instructive case on the question of amending verdicts on the affidavits of jurors. And while it goes beyond what seems to be the weight of authority, in permitting a verdict to be amended on such affidavits after the jurors have separated, yet it is clearly in line with the authorities in holding that such testimony is admissible to prove a mistake in delivering the verdict. weight of authonty is that a verdict cannot be amended on the affidavits of jurors after they have been discharged. Walters vs Jenkins 16 Serg & R.. 414 (16 Am: D., 585); Seith vs Alison 8 Ga. 201 (52 Am. D.,393); Wood us McGuire 17 Ga. 361 (63 Am. D., 246); Riggs vs Cook 4 Gilman (Ill) 336 (46 Am. D., 462); Reitenbaugh vs Ludwick 31 Pa. St., 131; Sargent vs State 11 Ohio 472, and Little vs Larrabee, supra. In Dalrymple vs Williams, snpra, the foreman of the jury announced a verdict different from that agreed to by the jury, and the verdict was recorded. Held, That affidavits of the jurors were competent evidence to prove the mistake. This case was followed and approved by the U. S. C. Ct.

and a

In Little vs Larrabee, 2 Greenl., 37 (11 Am. D. 43), the verdict had been received and recorded, and the jury separated. But a joint affidavit was made by the jurors, that they misunderstood the legal terms used in their verdict, and that their intention was to return a verdict for the tenant; and that they erroneously supposed that to be the effect of the words used. The tenant's counsel moved to amend the verdict according to the facts. The Court held that this could not be done as the jury had been discharged; but ordered that the verdict be set aside new trial had. In Roberts vs Hughes, 7 M. & W., 399, it was held that affidavits of jurors as to what took place in open Court on the delivery of their verdict, were receivable to prove that this verdict was entered for the plaintiff by mistake, and a new trial was ordered. In Cogan vs Elsden, 1 Burr., 383, where the issue was as to two rights of way under which the defendant justified, the jury found for the defendant as to one and for the plaintiff as to the other, but returned a verdict for the defendant as to both, and separated. This verdict was corrected on the affidavits of eight of the jurors, the foreman refusing to make an affidavit.

The

· Prussell vs Knowles, 4 How. (Miss.)90, for the Eastern Div. of N. J. in the case

Repr. 706

of Burlingame vs R. R. Co 23 Fed. and what seems to be the better reason, held in this case that the verdic In the case of Johnson vs Davenport 3 could not be amended. And it J. J. Marsh. 390, the court held that the is claimed that inasmuch as the plaintiff testimony of jurors was competent to when his motion to amend was sustained, invalidate their verdict, on the ground of withdrew his motion for a new trial, that mistake, when it did not subject the jury he has now no standing in this Court, and to any imputation of impure motives or that there is nothing now for the Court palpable impropriety of conduct. This I to do, but to enter judgment upon this conceive to be the true rule. While the mistaken and incorrect verdict as recordpolicy of the law will not permit a ver- ed. As this would be a plain and gross dict to be impeached by the affidavits of injustice, the Court would hesitate long jurors when the object of such affidavits before concluding that it is powerless to is to prove misconduct of the jurors act, or to protect itself as well as the while engaged in their deliberations plaintiff against a palpable miscarriage of in the jury room, nor for the purpose of justice. As was said by the Court in showing impure motives or fraudulent or Clark vs Lamb, 8 Pick. 415 (19 Am. D. improper conduct of members of the 332), "iu all proceedings mistakes will ocjury; yet such affidavits are clearly admis- cur, notwithstanding all ordinary care, sible to show that the verdict as in fact and when they thus happen they ought if received and entered, by reason of a possible to be corrected without injury to mistake in drawing it, or by reason of a either party. The course of practice admistake in open court when the verdict opted by the Courts was founded on this is received, does not embody the true principle." In Eddomes vs Hopkins, 1 finding of the jury. Such testimony is Dougl. 361, Justice Buller said that not in any sense testimony impeaching where a general verdict had been rend the verdict. "It upholds the real ver-ered on a declaration consisting of differdict, and prevents miscarriage in its delivery to the court." The court is therefore of opinion that the affidavits of the jurors are admissible in evidence on the motion, and they, together with the affidavits of the plaintiff and the clerk, show beyond all doubt that the verdict as recorded is incorrect, and how the mistake occurred, and what the true finding was.

ent counts, some of which were inconsistent or bad in law, that the only proper remedy was to award a venire de novo. In the case of Little vs Larrabee, supra, the Court held that instead of attempting to correct the verdict and make it conformable to the intentions of the jury as explained by them after it had been received, the trial Court should have set it aside, and granted a new trial, and it was so crdered. In that case there was, as it appears, no motion for a new trial. There was only the motion to amend the ver

The next question is what should now be done in the premises. While there is quite a conflict in the authorities as to the power of the court to amend a verdict. And the Court while holding that dict, in a matter of substance, after the this motion should be overruled, ordered jury has been discharged, yet the Circuit that a new trial be granted on the ground Court, following the weight of authority, of mistake. In Dalrymple vs Williams,