(dissenting):
Mitchell v. Garter (14 Hun, 448) shows that the facts alleged in the moving papers, if properly alleged, justify the order setting the verdict aside. The county judge who made the order presided' at the trial; he knew the location of the jury room and the court room, and knew that the minute book was left in the court room. The opinion shows that he paid but little attention to the declarations of the jurors themselves, treating their evidence as practically incompetent, but in his opinion he states as a fact that his minutes were in the room in which the jury were deliberating. ■ He probably knew that in the court house, during the recess of the court, the jury usually returned to the court room for deliberation rather than remain in the small jury room. He knew the circumstances of the trial, the officers in charge of the jury, the contents of -his minute book, and all the surrounding circumstances. He apparently had *592knowledge that the jury -were in the room where his minute "book Was, and upon the application upon information and belief" that, the jury actually examined the book, he considered that it rested with the plaintiff to show-that the irregularity was harmless. The jurors • were competent witnesses to sustain the verdict and to show that nothing improper occurred;. The absence of such evidence is significant.
The due administration of justice depends Upon a verdict by an impártial jury, the verdict to rest upon the evidence of the case, and • the mere suspicion of the presiding judge that other matters have intervened, and a refusal of the prevailing party to explain such matters when an opportunity is given and he alone can. explain them, go far to justify an order for a new trial. If this order had been made by a judge other than the one presiding at the trial, the situation would be.much different. If the. judge had known, or had reason to believe that the verdict was the. result of improper conduct of the jury, it was his right and duty to. set aside the verdict and give to the parties a fair, impartial trial. The application was made at the same term of court; the Couhty Court, is. always open for business; for - some defect in the moving papers the hearing of ■ the motion did not apparently actually take place until after the jury, had been discharged for the term. I think the matter should be treated in the same manner as .if during the term a suggestion had been made to the county judge of an irregularity which he had investigated, and upon being; convinced of its truth had set the verdict aside. It was a matter resting in the sound, discretion of the court, and absolute proof is not required. In many cases before the court, where the question is -raised that. the court has been imposed upon, a fraud committed upon the court, or that the verdict-is the result of an irregularity, the necessity that judicial proceedings shall be beyond suspicion justifies the court in acting, upon slight evidence, especially where the successful party alone has-ample means to show the regularity of'the proceeding.
I think upon the facts shown the discretion was properly e'xer- - cised and that the order should be affirmed.
Sewell, J., concurred.
' Order reversed, with ten. dollars costs and disbursements,, and motion denied, with ten dollars costs.