[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 484 Defendant's counsel admits that he stipulated in open court that the verdict of the jury might be received by the clerk with the same force and effect as if the presiding justice were present. He does not claim that this stipulation was entered into through mistake or inadvertence, nor has he ever asked to be relieved from it. Four days after the verdict was rendered he made a motion for a new trial without even alluding to any objection to the manner in which the verdict was received. That motion having been denied he took an appeal to the Appellate Division and in that court, although he urged every other objection to the validity of the judgment, he was silent as to his stipulation. Not until his appeal had resulted in an adverse decision, and he had taken *Page 486 his final appeal to this court, did he make the motion which eventuated in the order we are now asked to review. It is obvious that if such a stipulation may be repudiated under such circumstances, it must be because of the inherent illegality of the proceedings taken under the stipulation. That seems to be the ground taken by defendant's counsel and subscribed to by the courts below. We entertain a different view. We think the stipulation was one which counsel had a right to make, but even if there were doubt upon that subject we think defendant's counsel is estopped by his conduct and laches from repudiating his stipulation at this late day.
"Parties by their stipulations may in many ways make the law for any legal proceedings to which they are parties, which not only binds them, but which the courts are bound to enforce. They may stipulate away statutory, and even constitutional rights. They may stipulate for shorter limitations of time for bringing actions for the breach of contract than are prescribed by the statutes, such limitations being frequently found in insurance policies. They may stipulate that the decision of a court shall be final, and thus waive the right of appeal; and all such stipulations not unreasonable, not against good morals, or sound public policy, have been and will be enforced; and generally, all stipulations made by parties for the government of their conduct, or the control of their rights, in the trial of a cause, or the conduct of litigation, are enforced by the courts." This was the language of Judge EARL in writing for this court in Matter ofN Y, L. W.R.R. Co. (98 N.Y. 447, 453), where many authorities are cited.
"In civil cases a party may stipulate away his rights, questions of jurisdiction, as well as others, and he may do this by express agreement, by acts inconsistent with the objection, or by his silence and omission to present the proper objections when he ought to object." (Cowenhoven v. Ball, 118 N.Y. 231, 236;Vose v. Cockcroft, 44 id. 415.)
The learned counsel for the respondent, while recognizing the force of this rule, contends that it has no application to *Page 487 this case for the reason that the presence of the trial judge at the time of the reception of the verdict was necessary in order to constitute a valid court. In support of this contention he invokes the well-established principle that mere consent cannot create a court nor endow it with jurisdiction. The answer to this argument is, that in the case at bar there was a validly constituted court having jurisdiction of the subject-matter and of the parties. The absence of the trial judge when the verdict was received was, at most, an irregularity which the parties could and did waive, and while it would undoubtedly have been competent for the court to have relieved the defendant from the effect of his stipulation and waiver upon good cause shown, that could only have been properly done if the defendant had moved promptly.
In recent years it has been common practice to permit the rendition of sealed verdicts in the absence of the judge or justice presiding at the trial. It has never been claimed that the absence of the judge or justice in such cases has the effect of destroying the autonomy of the court or rendering its judgments void, and we do not perceive how the absence of the justice under the facts disclosed by this record could have had any such effect.
In criminal trials the rule is undoubtedly different. (Cancemi v. People, 18 N.Y. 128.) In the case at bar, however, we have simply a civil and private controversy, embracing no element of public interest or policy that rendered the presence of the justice essential to the ministerial act of receiving a verdict, where the parties without coercion or mistake had stipulated that they, together with the clerk, would receive the verdict in the absence of the justice. The law applicable to this case is well expressed by Judge Cooley in his work on Constitutional Limitations (5th ed. pp. 504, 505), where he says: "When it is once made to appear that a court has jurisdiction of the subject-matter and of the parties, the judgment which it pronounces must be held conclusive and binding upon the parties thereto and their privies, notwithstanding the court may have proceeded irregularly, or erred in its *Page 488 application of the law to the case before it. It is a general rule that irregularities in the course of judicial proceedings do not render them void. An irregularity may be defined as the failure to observe that particular course of proceeding which, conformably with the practice of the court, ought to have been observed in the case; and if a party claims to be aggrieved by this, he must apply to the court in which the suit is pending to set aside the proceedings, or to give him such other redress as he thinks himself entitled to; or he must take steps to have the judgment reversed by removing the case for review to an appellate court, if such there be."
Defendant's counsel is doubtless correct in saying that the consent of parties cannot empower the court to delegate to the clerk any judicial functions. But there was no attempt to do any such thing in the case at bar. It is always the duty of the clerk to receive the verdict of a jury, and while that is usually done in the presence of the presiding judge, the latter exercises no strictly judicial function at such a time, except the physical act of presiding, unless some motion is made or the verdict as rendered needs correction. There is no claim here that the verdict was not regular, and we hold that in receiving it the clerk was not invested with any judicial function.
We are aware that in some cases the lower courts of this state seem to have adopted the contrary view. (French v. Merrill,27 App. Div. 612; Morris v. Harburger, 100 id. 357;Ingersoll v. Town of Lansing, 51 Hun, 101.) When these cases are examined, however, it will be found that while the opinions upon which they rest seem to be at variance with the views here expressed, each is based upon special and peculiar circumstances which were in and of themselves quite sufficient to warrant the decisions made. In French v. Merrill the defendant, against whom a verdict had been rendered, died within two days thereafter and before judgment had been entered. The cause of action was one that did not survive. The executrix moved promptly to have the verdict set aside. It was granted for reasons that become obvious upon the mere statement of the case. In Morris v. Harburger *Page 489 the presiding judge directed that in his absence the clerk should receive the verdict. The parties did not consent to the arrangement and moved promptly for a new trial upon that ground. In Ingersoll v. Town of Lansing the presiding justice left the court on Friday and did not return until the following Tuesday. Under the circumstances it was held that the jury might have been coerced into agreeing so as not to be kept together for four days. A motion to set aside the verdict was made promptly, and in that case Judge MARTIN expressly refused to hold that it was not competent for parties under any circumstances to make a binding stipulation that a verdict should be received in the absence of the judge.
In deciding this question upon the particular facts of this case, we do not wish to be understood as approving a practice that is concededly irregular, although at times desirable and even necessary. We simply hold that the judgment herein, entered upon the verdict received under the circumstances disclosed on this appeal, is not void because the verdict was received in the absence of the presiding justice.
The order should be reversed, with costs, and motion denied, with ten dollars costs; the first and fourth certified questions are answered in the affirmative; the second and third are not answered.
CULLEN, Ch. J., GRAY, BARTLETT, HAIGHT and VANN, JJ., concur; O'BRIEN, J., absent.
Order reversed, etc.