This action was tried before the court and á jury, and resulted in a verdict in favor of the plaintiffs. • A motion for a new. trial was made under section 999 of the Code of Civil Procedure, and was denied. Thereafter judgment was entered. After the entry of judgment the defendant made a motion to set aside the verdict ■upon the ground of misconduct of the jury, w.hich motion was granted. The affidavit upon which the motion was granted was made by the defendant’s counsel. It recites the trial, the verdict a,nd the motion for a new trial, its denial and the judgment. It then recited upon information from the county judge and belief that at the adjournment of the court upon that day the county judge left his minute book, in which lie had taken some minutes of the trial, upon the bench in the court room. It further recited upon information from one of the jurors that two of the jurors thereafter came into possession of that minute book and read it *591and made known its contents to liis colleagues who discussed the same. This was the irregularity complained of.
If these facts were properly shown the order would seem to have been justified. (Mitchell v. Carter, 14 Hun, 448.) The fact that the jurors at any time had access to. these minutes or opportunity to read them, and the fact that they were so read, is shown only by an affidavit based upon information from one of the jurors. That this cannot be so shown seems to have been held in Mais v. Ruh (57 App. Div. 15). It hardly seems necessary to cite authority to the proposition that facts which cannot be sworn to by a juror to impeach his verdict cannot be shown by a third person upon information from that juror. Hor is it necessary to decide "whether proof is necessary that the reading of' these minutes influenced the minds of the jury. Plaintiffs could have produced the affidavits of the jurors to negative these facts but were not bound to do so until-defendant had produced some legal evidence of the fact that the jury liad access to these minutes and in fact read them.
For this reason we think the order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
All concurred, except Kellogg, J., dissenting in opinion, in which Sewell, J., concurred.