A brief reference to some historical facts may be of aid in the interpretation of section 459 of the Civil Practice Act.
In the early days of the common law the method of keeping check on the jury was by attaint. Later, in order to permit escape from that hardship, the jury in civil cases was given the privilege of returning a special verdict. That ancient law was incorporated in our Revised Statutes as follows: "No jury shall, in any case, be compelled to give a general verdict, so that they find a special verdict showing the facts, respecting which issue is joined, and therein require the judgment of the court upon such facts." (2 R.S. 421, § 68.)
"Attaints upon untrue verdicts are abolished." (Id. § 69.)
Through successive revisions we thus derive the first sentence of section 459 of the Civil Practice Act.
Another check upon the general verdict of a jury was the old custom of the English judges of quizzing a jury which had returned an unexpected verdict. That custom apparently was adopted early in the judicial history of Massachusetts and extended to other New England States. An analogous method grew up in New York of submitting to the jury special interrogatories, answers to which were to be returned with the general verdict. That practice is referred to and was sanctioned in McMasters v.Westchester Mut. Ins. Co. (25 Wend. 379), decided in 1841. It was carried into the Code of Procedure of 1848 where section 216 provided that the court "may instruct [the jurors], if they render a general verdict, to find upon particular questions of fact, to be stated in writing, and may direct a written finding thereon."
The special verdict which the jury in its discretion may render is one thing, and the special finding upon the *Page 214 direction of the court in connection with the general verdict is another. The special verdict is in lieu of a general verdict and constitutes the sole basis of judgment. The special findings are merely in aid of a general verdict and a check upon it. If there is any inconsistency between the general verdict and the special finding, the latter is (Civ. Prac. Act, § 459) and since 1848 (Code of Pro. §§ 217, 262; Code Civ. Pro. § 1188) has been controlling. (See, generally, Green, "A New Development in Jury Trial." 13 American Bar Association Journal, 715, and authorities there cited.)
The portion of section 459 of the Civil Practice Act with which we are here concerned, relating to the submission of special questions pending a motion for nonsuit or for a direction of a verdict, came into the statutes in 1895 by amendment (Laws of 1895, ch. 946) to section 1187 of the Code of Civil Procedure. The submission there authorized is not in aid of the motion, which involves questions of law only. Its object, and its only object, like that of section 461 of the Civil Practice Act, is to obviate the necessity of a new trial in a case where the trial court was mistaken as to the law. (Jones v. N.Y.C. H.R.R.R.Co., 61 Misc. Rep. 139, opinion by WM. S. ANDREWS, J.; see, also, 25 Columbia Law Review, 775.)
It is clear that the practice followed at the trial in this case was not within the scope of the statute. To a cause of action upon a fire insurance policy, defendant interposed certain affirmative defenses relating to fraud and to incendiarism by the assured. Plaintiffs moved at the close of the case to dismiss the several defenses, and defendant moved for a nonsuit for failure to prove sufficient facts. The court reserved its decision on the motion for nonsuit, denied the motion to dismiss the defenses and submitted to the jury special questions relating only to the defenses. The jury by its answers to three of the special questions found the plaintiffs guilty *Page 215 of fraud vitiating the policy. Thereupon the court, in view of those answers, directed the jury to find a general verdict in favor of the defendant for no cause of action. There is no authority, statutory or otherwise, for the practice thus pursued, over the plaintiffs' objection. What may be done by consent under reserved motions is another matter. (See Bail v. N.Y., N.H. H.R.R. Co., 201 N.Y. 355.)
I, therefore, concur for reversal and for a new trial.
POUND, Ch. J., LEHMAN, O'BRIEN and HUBBS, JJ., concur with CRANE, J.; CROUCH, J., concurs in separate opinion in which all concur; KELLOGG, J., not sitting.
Judgments reversed, etc.