Upon reading the affidavits used upon the motion, it is apparent (1st) that Judge Daniels kept a book in which some of the evidence ,was entered, and (2d) that it was left on his desk in the court-room on the adjournment at night; (3d) that the jury occupied the court-room after the adjournment, most of the time, until they agreed, sealed their verdict, and separated, about five o’clock in the morning; (4th) that some of the jurors attempted to read the stenographer’s minutes, and failed; (5th) that the jurors had access to the book kept by Justice Daniels; (6th) that some of the jurors could not read his minutes; (7th) that some could read portions thereof, and did read portions thereof, and made comments in respect to the evidence so read in the minutes.
These conclusions are derivable from affidavits used upon the motion, exclusive of those of the jurors used to impeach their verdict. It is settled that the affidavits of jurors cannot be used to impeach or impair their verdict. (Clum v. Smith, 5 Hill, 560; Williams v. Montgomery, 60 N. Y., 648; Dana v. Tucker, 4 Johns., 487; Green v. Bliss, 12 How. Pr., 428). The declarations, of jurors for such purpose are inadmissible. (Taylor v. Everett, 2 How., 23; Clum v. Smith, 5 Hill, 560).
Upon the conclusions drawn from the affidavits, the case of Neil v. Abel and Annas (24 Wend., 185), is an authority decisive of the motion against the plaintiff. In that case, in an action upon contract, tried before a justice of the peace, the minutes of trial kept by him were handed to a constable, and by him taken to the jury room, and in five minutes after withdrawn by the justice. The Common Pleas on certiorari reversed the justice’s judgment, and on an appeal to the Supreme Court their judgment was sustained. Bronson, J., in delivering the opinion, *451collects the cases and concludes that the Common Pleas were right in holding this to be a fatal error.
He remarks incidentally that “the minutes of testimony kept by a justice of the peace are usually very imperfect.” We might speculate in respect to the minutes of a justice of this court being presumed to be more perfect, but that would be unavailing in this case, as the affidavits show the minutes of Justice Daniels did not contain all the evidence given upon the trial. The examination of the book of minutes by some of the jurors, without the knowledge and consent of the parties, must be held a fatal error, and the verdict, was, therefore, properly set aside. (See Hancock v. Salmon, 8 Barb., 564.)
It is the policy of the law to watch over the deliberations of the jury, and to guard them from all impressions and influences in respect to the issues involved not derived from a trial in open court, in the presence of the parties and their counsel, where ample opportunity is given to object to the admission of any evidence or comments not sanctioned by the law.
If minutes could be taken and read, it would be difficult to avoid the effect of marginal notes and underscorings of parts of the evidence and comments, which are sometimes found in the minute books of the most faithful, upright, and painstaking trial judges. Slight circumstances and inconsiderable observations may sometimes influence a juror’s mind. (Watertown B. & L. Co. v. Mix, 51 N. Y., 561; Schnapper v. Second Ave. R. R. Co., 55. Barb., 497.)
Private communication to a jury is very properly and strongly condemned by Johnson, J., in N. B. L. Co. v. Mix (supra). The burden of showing improper communications or observations, in writing or otherwise, should not be thrown upon a defeated party, who challenges any irregularity occurring in the deliberation hours of a retired jury. (Id., 561).
The Special Term was right in setting aside the verdict and granting a new trial, and the order must be affirmed, with costs and disbursements.
Talcott, P. J., and Smith, J., concurred.Order affirmed, with costs and disbursements.