Kaus v. Barthold

Judgment and order reversed on the law and the facts, as a matter of discretion, and a new trial granted, with costs to the appellant to abide the event. Memorandum: Upon the record before us we are unable to say that the colloquy between the court clerk and the jury, which occurred without the knowledge or consent of the court or of the counsel for the litigants and while the jury were deliberating upon their verdict, was not prejudicial to the defendant. That the clerk and the jury intended no wrong is probably true. The fact remains, however, that the transaction is of such gravity that we are not at liberty to “ countenance or tolerate ” it. Approval of such conduct would soon bring the administration of justice into disrepute and destroy “ the faith of the lay mind in its purity.” (Matter of Vanderbilt, 127 App. Div. 408, 410; Johnson v. Riter-Conley Manufacturing Co., 149 id. 543, 545, 546; *1034Payne v. Burke, 236 id. 527, 528.) “ None should have access to the jury for any purpose save as directly ordered by the court.” (Matter of Woods, 189 App. Div. 324, 327.) The fact that the information furnished by the clerk to the jury happened to be substantially correct is beside the point. All concur. (The judgment is for plaintiff in a civil action for assault and rape. The order denies a motion for a new trial.) Present — Sears, P. J., Crosby, Lewis, Cunningham and Dowbng, JJ.