It is a well established and salutary rule, and one very essential to the proper and effectual administration of justice, that the instructions of the judge to the jury should be openly and publicly imparted.
The right of a suitor to have the trial of his cause conducted openly, with the opportunity to be present, and to except to and review any unwarranted instruction or procedure, is a substantial one, and if any infraction of it occurs the burden rests upon the party maintaining the regularity of the proceedings to show that the communication, or act, or question could not have tended to the injury of the defeated party.
If, however, it appears affirmatively and beyond dispute that the instructions, instead of being prejudicial to the party complaining, was really favorable to him, and could not have worked *367any injustice, or in any way have affected the result, or rf the irregularity has been cured by the assent of the party alleging it, it is not a sufficient reason for ordering a new trial.
We have not been referred to any case in which the verdict has been sot aside where the irregular communication was shown to be immaterial, or where it was clearly proven that it could not have influenced the result to the prejudice of the defeated party; but the contrary has frequently been held. (Rogers v. Moulthrop, 13 Wend., 274; Horton v. Horton, 2 Cow., 589.) In the cases of Bunn v. Croul (10 Johns., 239), and Taylor v. Betsford (13 id., 487), the practice which had grown up in justices’ courts for the justice to visit the jury, after they had retired, and talk with them about the case, was justly censured and disapproved as objectionable and dangerous ; but in neither of these cases did it appear what the communication to the jury by the justice was.
In Plunkett v. Appleton (41 Sup. Ct., 159), and Watertown Bank v. Mix (51 N. Y., 558), it appeared that the irregular communications were unfavorable to the defeated party, and might Lave affected the result.
In this case the action was brought to recover damages sustained by plaintiff in falling through an open hatchway upon defendant’s premises. After the jury had. retired to deliberate upon their terdict, and while counsel were absent from the court room, the judge received a written communication from the jury inquiring whether the plaintiff had received his salary during the six months, to which the court answered: “ There is no evidence upon the subject, that I remember of, that he was paid anything while he was laid up ; it was a mere gratuity if he was.” Subsequently the jury, not having agreed, were brought into court, where, according to the testimony of several witnesses who were present, plaintiff’s counsel was fully informed, in the presence of the court and jury, concerning the communication and answer, but did not object 'or except to the same, or request further instructions to be given. The jury again retired, without objection on the part of the plaintiff, and rendered a sealed verdict on the following morning in favor of the plaintiff.
Whether this conduct on the part of plaintiff is considered a waiver of the irregularity complained of or not, it is clear that *368no prejudice to the plaintiff could have resulted from, the instructions given, which were plainly favorable to him.
The order denying plaintiff’s motion for a new trial must be affirmed, with costs.
Present — Baexaed, P. J., Gilbeet and DyemaN, JJ.Order affirmed, with costs.