Opinion
December, 1892.
Louis J. Grant, for plaintiff (appellant).
Henry M. Norton, for defendant (respondent).
The trial in above action was had at a trial term, held in January, 1892, there being but two issues before the jury. First. Was the plaintiff entitled to recover the sum of $475, the amount claimed? Second. Was there the special agreement between the parties as to the ejectment suit following the action for the award, as set up in the counterclaim? The trial resulted in a verdict for defendants in the sum of $5,639.54, the amount set up in defendants' answer, as a counterclaim, the sum admitted by the plaintiff's attorney upon the trial, to be the value of the services claimed by defendants, in case the jury found that the defendants were entitled to recover upon such counterclaim. The jury, by their verdict, disallowed plaintiff's claim, finding that the defendants were not indebted to the plaintiff in the sum of $475, as claimed in plaintiff's complaint. Upon the trial, the court, among other questions left by it to the jury, charged, at the request of plaintiff's attorney, as follows: Third. "Before the jury can find a verdict for the defendants, they must find that the plaintiff agreed on November 11, 1886, to pay them a proportionate sum in the ejectment suit, namely, $5,639.54." The attorney for the plaintiff in his moving affidavit, claims that the jury did not consider at all the directions of the trial justice, above cited. The presumption is that the jury in its proper discharge of its duty, followed the instruction of the court; and it is clear that it followed such instructions, from the fact that it rendered its verdict (after disallowing plaintiff's claim) for the identical amount named by the trial justice in his charge, and thus found that the plaintiff made the agreement referred to in the charge. The affidavits of the jurors attached to plaintiff's moving papers were evidently disregarded by the justice before whom the motion was made, and properly so, as the principle is well established that jurors cannot be heard by affidavits, or otherwise, to impeach their verdict. See Clum v. Smith, 5 Hill, 560; Williams v. Montgomery, 60 N.Y. 648. Order appealed from must be affirmed, with costs to the respondent.
VAN WYCK and McCARTHY, JJ., concur.
Order affirmed.