#### William B. Anderson, Respondent, *v.*Illinois Surety Company, Appellant.

First Department,

July 10, 1913.

Trial — when jury discharged—allowing jurors to separate—irregularity of judgment entered on answers of jury to questions after their discharge.

In an action upon a hond conditioned for the faithful performance of a building contract, three questions were submitted to the jury: *First,*as to the date of the completion of the work by the plaintiff. *Second,*as to the excess of the cost of completion by the plaintiff, over and above the cost under the building contract. *Third,*as to whether the' plaintiff was entitled to recover damages for the rental value of the property. The case was submitted to the jury on Friday, and it was stipulated that a sealed verdict might be rendered and received on the following Monday in the absence of the jury. The jury deliberated until about midnight, when, being unable to agree, the officer, in pursuance of instructions from the justice, allowed them to separate, but requested them to appear in court on the following Monday morning, but only a part of them responded. It appeared that the jury had been able to agree upon the date in answer to the first question, but had not been able to agree on the other questions, and the matter was postponed until Tuesday, when all the jurors appeared, and after being further instructed by the court, answered the other questions, and a judgment was directed thereon in favor of the plaintiff.

*Held,*that the jury was discharged when it was allowed to separate on Friday night, and that the judgment should be vacated for irregularity.

The direction of the justice that the jury should appear before him on the following Monday morning did not in effect leave the case still under their advisement.

The answer of the jury to the first question submitted did not, without further finding, entitle the plaintiff to judgment.

*692Appeal by the defendant, Illinois Surety Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of May, 1913, denying defendant’s motion to set aside a judgment for irregularity.

*L. Laflin Kellogg,*for the appellant.

*Louis Burgess,*for the respondent.

Scott, J.:

The irregularity of which defendant complains consisted of reconvening a jury after it had disagreed and, as it is claimed, been discharged, and resubmitting the case to them. The defendant is sued upon a bond conditioned for the faithful performance by the Gurlitt-Manning Company of a contract to build a house, the plaintiff’s claim being that that company defaulted in its contract, whereby he was damaged.

The trial was concluded and the case submitted to the jury on Friday, February 28, 1913, the last day of the February term. Three questions were put to the jury, as follows: *First.*What was the date of the completion of the work under the Gurlitt-Manning contract, as completed by the plaintiff ? *Second.*What was the excess of the fair cost of completion as completed by the plaintiff over and above the cost as covered by the Gurlitt-Manning contract? *Third.*Is the plaintiff entitled to recover damages for the rental value of the property, and if so, for what time and for what amount ? It was stipulated that a sealed verdict might be rendered and that it be received on the following Monday in another part of the court in which the justice who presided at the trial would then be sitting. It was further stipulated that the verdict might be received in the absence of the jury with the same force and effect as if the jury were present. The jury deliberated until about midnight, when, being unable to agree, the officer in charge, in pursuance of instructions received from the justice, allowed them to separate. The instructions to the officer were to tell the jury to be in court on the following Monday morning and he did so tell them, but evidently they did not all understand him because only a part of them responded. On Satur*693day, by direction of the justice, a postal card was sent to each juror instructing him. to present himself in court on Monday morning. All but two responded, when it appeared that the jury had been able to agree upon the date in answer to the first question, but had not been able to agree upon answers to the second and third questions. The matter was postponed until Tuesday morning, when all the jurors appeared and were further instructed by the court, who informed them that their answer to the first question established plaintiff’s right to recover some damages, and then sent them out to answer the second and third questions, which, in time, they did. Upon these answers a judgment was directed in favor of plaintiff. All these proceedings were under the objection and exception of defendant’s counsel.

We are of opinion that the regularity of the proceeding' turns upon the question whether the jury were discharged on Friday night, when, having been unable to fully agree, they were allowed to separate, for, as remarked by Andrews, J., in *Rippley*v. *Frazer*(69 Misc. Rep. 415), no case has been found holding that, after a jury has been formally discharged by the court, it may be reconvened and permitted then to render a verdict. The cases cited by respondent may all be brought within two classes: where the jury has in fact agreed upon a verdict which necessarily demands the entry of a .judgment, although by mistake the verdict may have been improperly announced or recorded, or where the jury, having arrived at an agreement, has remained in charge of the case, and under control of the court, and has been sent back to correct an obvious error or to complete an imperfect verdict. That the jury in the present case was virtually discharged when it was allowed to separate seems to be clear. The stipulation of the parties contemplated that the jury should not again come into court, and the direction of the justice that the jurors should appear before him, on Monday morning did not amount, as we consider, to leaving the case still under their advisement. Nor was the case one in which the question upon which the jury had been able to agree required, without any further finding, a judgment for plaintiff. It is true that as stated by the justice their answer necessitated some recovery *694by plaintiff, but the amount of the recovery remained still to be determined. We áre aware that the courts have gone to considerable lengths in saving verdicts under somewhat similar circumstances, but no case, as we think, has gone so far as it would be necessary to go to uphold the judgment in the present case, and we feel that we should not go" so far, regret-able as it is that the result of a long trial should be lost.

The order appealed from permits a renewal' of the motion upon a complete record of a trial. Ordinarily we do not review an order when permission to renew is given, but in the present case we are unable to perceive that a record of the trial would throw any light upon the occurrences which happened after the submission of the case to the jury.

The order appealed from must be reversed, with ten dollars costs and disbursements, and the judgment vacated, the cause being restored to the trial calendar as nearly as may be in the position it would have occupied if the jury had been recorded as disagreeing.

Ingraham, P. J., Laughlin, Dowling and Hotchkiss, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, judgment vacated and cause restored to calendar as directed in opinion. Order to be settled on notice.