(dissenting):
The facts upon which the application for review is made herein are substantially undisputed - and are as follows: The action is.one
against the defendants Daniel Gr. Reid and the Pain Manufacturing Company, to recover damages for the death of Ralph E. Wirt, deceased, through théir alleged negligence.
The case was. duly reached for trial, and a trial was had. Under the charge of the court, the jury were substantially instructed that they could not hold both the defendants liable for the acts complained of and were informed at length as to the conditions under which the defendant Reid could be held free from liability in the premises. The jury retired about one p. m., Friday, November 19, 1909. At five o’clock in the afternoon, no verdict having been reported, the court gave instructions for the delivery of a sealed verdict, to be returned on the following Monday at ten-fiftéen a. m. In response to questions put-by the clerk, the jury, on four different occasions, had announced to him through the officer that they did not agree and that an agreement was an impossibility. After the court bad directed the delivery of a sealed verdict and on the *775receipt of further communication that they could not agree, the clerk instructed the officer tó discharge the jury with instructions to return at the opening of court on the following Monday morning. At that time, the jurors and counsel being in the court room, the' clerk announced the inability of the jury to agree and entered in his minutes the record of a disagreement, returning the trial fee to plaintiff’s attorney. ¡No verdict of any kind, sealed or otherwise, was signed by the jurors. Thereafter, counsel for the defendant Beid called the attention of the court to the fact that he had been voluntarily informed, by one of the jurors, as he was about to leave the court room, that the announcement was erroneous and that as a matter of fact the jury had agreed upon a verdict in favor of the defendant Beid, and only disagreed as to the liability of liis codefendant.
Counsel for Beid at once stated in open court what he had been told and all the jurors being present in court, he moved that they be called and assigned to their seats in the jury box and polled. This motion was objected to by the counsel for the other parties and was denied by the court. Thereafter, and at the same term of court, upon affidavits of each of the twelve jurors that , they had agreed upon a verdict,in favor of the defendant Beid, and only disagreed as to the liability of the defendant Pain Manufacturing Company, defendant Beid moved before the justice who presided.at the trial for an order correcting the clerk’s minutes so as to include therein a verdict in favor of the defendant Beid and to authorize judgment to be entered accordingly. It is from the denial of this motion that the present appeal is taken. The question presented herein has never been before the court in this precise form. The power of the court, and its duty in a suitable case, to correct any error or omission in a verdict rendered by a jury is undisputed. In Dalrymple v. Williams (63 N. Y. 361) the foreman of the jury announced a general verdict in favor of the plaintiff against both of the defendants, and it was so entered. On application, made on the same day, to the judge holding Circuit, an order to show cause was granted why the general verdict should not be corrected, based on the affidavits of all the jurors, showing that the verdict was, in effect, agreed upon in favor of one of the defendants as against the other for the amount named in the verdict entered, and that the *776announcement made through the foreman was a mistake and an inadvertence. The court in its opinion reiterated the doctrine that, for reasons of public policy, jurors should not be allowed to impeach their verdicts either by showing mistakes or misconduct; nor could they properly be permitted to declare, with a view to affecting their verdict, an intent different from that actually expressed by the verdict as rendered in open court. That is, jurors cannot, by affidavits, prove mistake on their part, or any act done by them which would tend to impeach or overthrow their verdict. This rule would exclude affidavits to show mistake or error of the jurors in. respect to the merits, or mistake, in that they mistook the effect of their verdict and intended something different. The court cited the cases holding that a verdict reported to the court cannot be impeached; but it held that quite a different question was presented' where the allegation was that the jurors had been misunderstood by the court or had erroneously reported to it a conclusion actually reached by them, by reason whereof the entry made in the clerk’s minutes is not and was not their verdict, As the court said : “ It is not an attempt to reverse their action in the jury room, but to establish it. It is in the nature of an attempt to correct a clerical mistake. Had the jury rendered a sealed verdict, and their clerk or scrivener made a mistake in reducing it to writing, a correction of the Writing after it had reached the court and been entered upon the minutes would be no impeachment of the verdict or of the integrity, intelligence or action of the jury. The jury in furnishing proof of the clerical mistake would stand by their agreement and aid in giving effect to their deliberations and determinations. In the case now before us it is merely sought to prove by the affidavits of the jurors that by an accident, without intentional fault, the verdict of the jury was erroneously delivered to and received by the clerk. I am unable to see in this an infringement of the rule forbidding jurors to impeach their verdicts; neither can I perceive serious danger in any practice that may grow up under such an exception to the general rule. Applications of this character will be rare, will be made before the judge presiding at the' trial and while the whole subject is fresh in the minds of all, and never will be granted except in cases free from reasonable doubt. Something must always be trusted to the discretion of the *777judge. Discretion cannot be withheld in all cases because it may sometimes be abused.”
So in Hodgkins v. Mead (119 N. Y. 166), where a sealed verdict had been signed and delivered by the jury which, when opened on the following morning, was found to contain a verdict for the plaintiff with no amount specified, the court, upon affidavits of all the jurors to the effect that they had agreed upon a verdict for the plaintiff for the full amount'named, with interest, and had omitted the amount supposing that it would be inserted at the opening of the court on receipt of their verdict, amended the verdict by adding thereto the sum of $848 after the words “we find herein a verdict for the plaintiff.” In that case, however, there was no question that, if the plaintiff was entitled to recover at all, he was entitled to the full amount claimed. In sustaining the action of the trial court the Court of Appeals cited with approval Dalrymple v. Williams and laid stress on the fact that “ the sealed verdict, as actually handed in and signed by the jury, fixed really and beyond peradventure the status of the plaintiff, and from such verdict the fact almost followed as a legal conclusion that the amount as directed by the court was the amount found by the jury.”
There are other cases in which errors have been held to have been properly corrected, but this application presents features not existent in any other to which we have been referred. At the outset we are confronted by the fact that no verdict was ever reported to the court. A verdict at common law was the unanimous decision made by the jury and reported to the court on the matters lawfully submitted to them in the course of the trial of a cause. (Bouvier.) Under section 1186 of the Code of Civil Procedure, verdicts are defined as either general or special. Under none of these definitions is a disagreement a verdict. As a further proposition, it may be deemed as well established that the presence of the court is requisite to constitute a valid verdict. So in Davis v. Township of Delaware (41 N. J. Law [12 Vroom], 55), it was held that “ A verdict is the answer of a jury given to the court concerning the matters of fact committed to their trial.”
In French v. Merrill (27 App. Div. 612) the court said: “ The verdict is a very important act. It is the culmination of the trial and embodies the conclusions of the jury upon the questions of fact liti*778gated upon the trial. It :can only be delivered to a court legally constituted to receive it. The court has important duties to discharge in connection with it.”- And again : “ The only effectual and legal verdict is.the public verdict in which the jury openly declare to have found the issue for the -plaintiff or for the defendant.” (29 Am. & Eng. Ency. of Law [2d ed.], 1044.) “A verdict contemplates, and necessarily involves, the presence of both court, and a jury,.and whenever it is directed it is absolutely necessary that both be ¡present.” (Gilbert v. Finch, 72 App. Div. 38.)
From these considerations it follows that when on Friday evening the jury were discharged without having signed a sealed verdict, and having only reported to the clerk a disagreement, a mistrial .occurred.
“ Where a jury is discharged without a verdict, the proceeding is properly, known as a mistrial.” (Fisk v. Henarie, 32 Fed. Rep. 427.) -This is in no way affected by. the decisions holding that -after a jury have rendered a séaled verdict and been discharged, the court may still exercise supervision of them, or the jury themselves can correct their mistake. So it has been held in Rogan. v. Mullins (22 App. Div. 117) that until a jury has been actually discharged they may correct or alter their verdict at their own instance or imder the direction, of the court. -
It has been further held that the separation of the jury, after handing, in a sealed verdict, is not such a discharge as would prevent, the court from sending them out again to supply an omission to assess damages for the detention of chattels. (Seidenbach v. Riley, 6 N. Y. St. Repr. 104; affd., 111 N. Y. 560.)
The judge does not lose his power over the jury by their agreement and discharge upon sealing a verdict, but he still has power to get the correct legal verdict from them. (Hatch, v. Attrell, 1 N. Y. St. Repr, 497; affd., 118 N. Y. 383.) .
It will be noticed that in all these cases a verdict had actually been announced by the jury. If, on the reassembling of court on the;, following ■ Monday morning, upon the- announcement by the clerk of their, disagreement; the jury had protested against the announcement as a mistake and erroneous, and requested the court to-allow them to deliver the conclusion .actually reached as a verdict, another situation would have been presented, not without its, difficulties; although it would still seem that when the discharge on *779Friday evening without the rendition of a verdict was had, pursuant to the instructions of the court, the mistrial was then complete, and neither court nor jury could revive the latter’s extinct powers; for such cases as Warner v. N. Y. C. R. R. Co. (52 N. Y. 443), holding that jurors have power over their verdict, and that they have the right to alter it so as to conform to their real and unanimous intention and purpose, only apply up to the time when they have been dismissed from their relation to the case as jurors.
By the ancient common law jurors were kept together as prisoners of the court until they had agreed upon their verdict. The trials of cases lasted but a single day, and the power of the court to adjourn from day to day, in order that the jurors might have rest and refreshment, was doubted and denied; but with the increase in the number of jury trials, and 'their greater duration, the universal practice has grown up of allowing jurors to separate in the trial of civil cases, as well as of allowing the rendition of sealed verdicts, as a matter of convenience both for the court and jurors. There is nothing about a sealed verdict which distinguishes it from or renders it more sacred than an ordinary verdict. It is subject to thé same corrective agencies as the latter. Every verdict may be shorn of such errors and mistakes- as creep into it in course of communication from the jury to the court. But there is no authority for the conversion of no verdict into a verdict; of a disagreement into an agreement; of a mistrial into a completed trial.
While in this case it may seem that an injustice is being done to the defendant Reid, the embarrassing situation in which he finds himself of being obliged to again resist, a claim which, apparently, a jury once thought he should not be called upon to pay, is due to the act of the jury itself. To authorize the creation by affidavits of a verdict after a mistrial is a proceeding fraught with danger and a step beyond anything yet authorized by law.
The order appealed from should, therefore, be affirmed, with ten dollars costs and disbursements.
McLaughlin, J., concurred.