§ 229. Verdict and its Incidents.

The different forms of verdict are clearly prescribed, by section 260 to 263 inclusive, and also in section 265.

It may be either

1. A general verdict on all the issues.

2. Separate general verdicts upon individual issues.

3. A general verdict, with special findings, in addition, upon questions of fact.

4. A special verdict on all the issues.

5. A special verdict upon individual issues.

6. A verdict, subject to the opinion of the court.

The last is a matter which does not rest in their discretion, but as to which they are bound to obey the direction of the court. So, likewise, as to an instruction to make special findings of fact, in connection with a general verdict, and as to rendering a special verdict in certain

cases.

But, in actions for the recovery of money only, or of specific real property, the rendering of a general or special verdict, rests in their discretion.

The general rule is for the jury to render their verdict to the judge in the presence of the parties. That presence is not, however, absolutely essential, nor need the plaintiff be called, when they return to the bar to deliver it (rule 31). But the judge is the only party who can properly receive it, unless a sealed verdict has been permitted. When that is the case, the sealed verdict is brought in by the foreman, to the court, on the following morning, and handed to the judge. It must properly be signed by all, but the irregularity, if not objected to, will be waived. Green vs. Bliss, 12 How., 428.

Either party has the right, on the render of the verdict, whether oral or sealed, to poll the jury, and inquire of each juryman whether it is his verdict. In strictness, the juryman must give a direct answer to the question; but the irregularity of doing so, in an indirect form, is likewise an objection that must be taken at the time. Same case. The question must be put in the above form, and cannot be so in any other. Labar vs. Koplin, 4 Comst., 547.

(a.) CORRECTIONS OR ADDITIONS, WHERE ADMISSIBLE.

If the verdict be returned in open court, and in the presence of counsel, and the jury, as is often the case, have fallen into manifest error, the present is the proper period for its correction. By a recon

sideration of such errors, under the direction of the judge, much subsequent trouble, and possibly the necessity of a new trial, may be obviated. This observation of course assumes, that the errors in question have arisen, from a manifest misapprehension, on the part of the jury, as to the extent of their functions, or as to the real nature of the questions submitted to them.

If any purely technical errors have been committed, the defect may be even cured by subsequent amendment, when there is no doubt of their real intention. Burhaus vs. Tibbets, 7 How., 21; Williams vs. Willis, 7 Abb., 90.

But, if there is the slightest doubt upon the subject, or upon what transpires at the trial, none should be allowed. Burhaus vs. Tibbets, supra.

And it cannot be changed in substance, however erroneous it may be. United States Trust Company vs. Harris, 2 Bosw., 75.

(b.) GENERAL CHARACTERISTICS OF VERDICT.

A verdict, when rendered, cures all minor defects in the pleadings and proceedings, not previously impeached. Dias vs. Short, 16 How., 322 (324); Brown vs. Harmon, 21 Barb., 508.

The fact that the jury have found for either party, on a special issue, the facts being admitted, does not render it a special verdict, but, taken with the admission, it entitles the party to judgment, without further application to the court. Williams vs. Willis, 7 Abb., 90. Nor will a mere finding of the jury upon special questions, when incomplete in its nature, give the verdict the character of a special verdict. McCrackan vs. Cholwell, 4 Seld., 133; Manning vs. Monaghan, 23 N. Y., 539.

A special verdict need not be found in the precise terms in which it ultimately comes up for further adjudication, but its form may be subsequently settled (rule 34). All important questions of fact, must, however, be regularly submitted to the jury, and passed upon by them at the time, and their finding must be reduced into writing, filed with the clerk, and entered upon the minutes.

A special verdict need not contain facts admitted by the pleadings. All facts, however, necessary to enable the court to render a proper judgment, must be found in terms, and cannot be supplied by inference, or examination into the evidence. The special verdict should find all facts requisite to enable the court to give the proper judgment, upon looking at the pleadings and verdict alone. Eiseman vs. Swan, 6 Bosw., 668; Williams vs. Willis, 7 Abb., 90; Barto vs. Himro, 4 Seld., 483; Sisson vs. Barrett, 2 Comst., 406. See hereafter, as to the proper form of such verdict, in connection with the subject of New Trial. If a special verdict only be taken, and that verdict does not dispose

of all the material issues, the court, at general term, will not entertain the case, but will order a new trial. Eiseman vs. Swan, 6 Bosw., 668.

If no general verdict be rendered, but merely special findings, not covering the whole case, it will be a mistrial. Such special findings, standing alone, are not sufficient to constitute it a special verdict. Manning vs. Monaghan, 23 N. Y., 539.

A general verdict is usually given orally, but, where particular questions of fact are submitted to the jury, their finding must be in writing and filed with the clerk, and entered on the minutes, as above.

As to the right of the court to submit such questions, and to control the requests of the parties, as to the nature of those which are to be passed upon, see Partridge vs. Gilbert, 3 Duer, 184 (200).

If the special findings be in favor of the defendant, and therefore inconsistent with a general assessment of damages, claimed by the plaintiff, judgment cannot be rendered. Congreve vs. Morgan, 4 Duer, 439 (448). See also Eiseman vs. Swan, 6 Bosw., 668.

The power given by section 261, to find a general or special verdict, in cases for the recovery of specific real property, is an evident modification of the provisions of the Revised Statutes, as to the verdict in ejectment, in which description of action, a verdict can now be taken, adapted to any peculiar state of the title. Wood vs. Staniels, 3 C. R., 152.

In replevin against several defendants, the jury may find, as against one or more, and need only assess the damages generally. Woodburn vs. Chamberlin, 17 Barb., 446. And, where the value of the property is not contested, a general verdict will be proper, and that value need not be specifically assessed. Archer vs. Boudinet, 1 C. R. (N. S.), 372.

In an action of this nature, the plaintiff, if he recover less than fifty dollars damages, should be careful to ask for an assessment of the value of the property recovered, with a view to the purposes of costs, and in order to bring the case within the following clause, forming part of section 304:

And, in an action to recover the possession of personal property, if the plaintiff recover less than fifty dollars damages, he shall recover no more costs than damages, unless he recovers also property, the value of which, with the damages, amounts to fifty dollars. Such value must be determined by the jury, court, or referee, by whom the action is tried.

A verdict, subject to the opinion of the court, may be taken for either party. Cobb vs. Cornish, infra. It is, however, only proper in cases where, upon the trial, there is no real contest of fact. If there be any conflict of evidence, a verdict of this nature cannot properly be rendered, nor can one be taken, in connection with exceptions raised at the trial. If attempted, and a judgment inconsistent with the verdict be

awarded, it will be a mistrial. Gilbert vs. Beach, 16 N. Y., 606; Cobb vs. Cornish, 16 N. Y., 602; 15 How., 409; 6 Abb., 129; Clark vs. Dearborn, 6 Duer, 309; Hull vs. Wheeler, 7 Abb., 411; Bangs vs. Palmer, 16 How., 542; Havemeyer vs. Cunningham, 8 Abb., 1; Sackett vs. Spencer, 29 Barb., 180; Sharp vs. Whipple, 3 Bosw., 474 (477); Purvis vs. Coleman, 1 Bosw., 321; Bell vs. Shibley, 33 Barb., 610. See also, as to such a verdict, in connection with special findings not disposing of the whole case, Eiseman vs. Swan, 6 Bosw., 668.

But the mere taking of a verdict in this form may not amount to a mistrial, when judgment is ultimately rendered according to the verdict, after hearing the exceptions of the unsuccessful party. City Bank of Brooklyn vs. McChesney, 20 N. Y., 240.

A verdict of this nature must be a complete disposition of the case. It cannot be rendered for an assumed sum, to be afterwards settled by a reference, if the court at general term sustain the right of the plaintiff. Buchanan vs. Cheeseborough, 5 Duer, 238.

If a general verdict of this nature be taken, in connection with special findings, the whole case must be taken as admitted. The defendant cannot claim, on the hearing, that the issues of fact were not found in favor of the plaintiff. The verdict is, on the contrary, conclusive, except so far as the special finding may control it. Sharp vs. Whipple, 3 Bosw., 474; Purvis vs. Coleman, 1 Bosw., 321. And, when such a verdict has been taken, it has been held that the court will draw in support of it, every inference which the jury would have been justified in drawing. Williams vs. Insurance Company of North America, 1 Hilt., 345.

And any verdict of a jury, on a question of fact duly submitted to them, is, as a general rule, conclusive, if there be evidence to support it, even although it be manifestly unsatisfactory. The principle is elementary, and scarcely needs the citation of cases to support it. The following may, however, be noticed as some of those in which it has been sustained: See Bennett vs. Scutt, 18 Barb., 347; Adsit vs. Wilson, 7 How., 64; Kasson vs. Mills, 8 How., 377; Mann vs. Witbeck, 17 Barb., 388 (390); Needles vs. Howard, 1 E. D. Smith, 54; Heim vs. Wolf, ibid., 70; Catlin vs. Grote, 4 E. D. Smith, 296 (305); Coddington vs. Carnley, 2 Hilt., 528; Gardner vs. Ryerson, 19 How., 108; Anonymous, 3 Abb., 102 (103); Conkling vs. Thomson, 29 Barb., 218; Williams vs. Vanderbilt, 29 Barb., 491; Mackey vs. New York Central Railroad Company, 27 Barb., 528; Bronson vs. Wiman, 4 Seld., 182 (189); Erben vs. Lorillard, 23 Barb., 82; Wilcox vs. Green, 23 Barb., 639; Hart vs. Potter, 4 Duer, 458; French vs. White, 5 Duer, 254; Whiting vs. Otis, 1 Bosw., 420; Ward vs. Forrest, 20 How., 465; Gould vs. Rumsey, 21 How., 97; Heritage vs. Hall, 33 Barb., 347.

See, however, as to a verdict manifestly against evidence, Harris vs. Panama Railroad Company, 5 Bosw., 312; Heritage vs. Hall, supra; Marston vs. Vultee, 12 Abb., 143. See also hereafter, under the head of New Trial.

(c.) PROCEEDINGS ON VERDICT BEING RENDERED.

When the verdict is sought to be set aside for errors of fact, as well as of law, it will not be expedient to ask that any exceptions be heard at the general terin, in the first instance, under the power conferred by section 265. That course is only proper, when the case comes up on points of law only. A case, on which questions of fact are raised, cannot be so heard. Cobb vs. Cornish, 16 N. Y., 602 (604); Gilbert vs. Beach, ibid., 606 (608).

On such a hearing, the court may render such judgment as ought to have been given, notwithstanding irregular action in the court below. United States Trust Company vs. Harris, 2 Bosw., 75.

The judge at circuit cannot order exceptions to be heard at the general term, and also direct the entry of judgment. If he make the former order, he must direct such entry to be suspended. Roosa vs. Snyder, 12 How., 285.

As to the duty of the judge and the clerk, on the coming in of the verdict, in relation to the entry of judgment, and the power of the former, in case of doubt, to order the case to be reserved for argument or further consideration, see Van Valen vs. Lapham, 13 How., 240; 5 Duer, 689.

On the entry of the verdict (as to which see section 264, above cited), the court and jury fees must be paid by the prevailing party. The results of that verdict remain for future consideration. Where, on the delivery of the verdict, it is manifest that a new trial will be moved for, or an appeal taken, a stay of proceedings may at once be applied for, whilst in court, and may probably be granted.

This step, if taken at once, will enable the moving party to obtain, upon the spot, whatever time he may reasonably require for the preparation of his case, or exceptions on such motion or appeal, without putting him to the necessity of a special application on notice on the one hand, or, on the other, from being fettered by the inconvenience of the twenty days' limitation under section 401, incident to an ex parte order, if resorted to.