#### KEHRLEY v. SHAFER.

(Supreme Court, General Term, Fourth Department.

December 26, 1895.)

*1.*Trial—Communications between Court and Jury.

It Is error for the court, after the jury has retired, to return an answer to a written communication from them without bringing them into court.

3. New Trial—Motion Based on Error in Fact—Nottck.

Such an error is an error in fact, and the time within which a motion for a new trial based thereon must be made is not limited by Code Civ. Proc. § 1002, providing that a motion for a new trial, founded on an allegation of error in a finding of fact or a ruling in law, must be noticed before the expiration of the time within which an appeal can be taken.

Appeal from special term, Oneida county.

Action by Michael Kehrley against Caroline E. Shafer, as executrix of John H. Shafer, deceased. From an order denying a motion for a new trial, made on a case and exceptions, defendant appeals.

Reversed.

Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.

W. L. Goodier, for appellant.

N. F. & J. Coupe, for respondent.

PER CURIAM.

That the case and exceptions were properly settled in this case, we have no doubt. As settled, they disclose that after the jury had retired to deliberate upon its verdict, the court received from it a written communication asking the court to give the jury the'amount claimed by the plaintiff. The court returned the following answer:

> “Note, $107. Interest from June 12, 1879. Meat, $6.60. Interest from June 12, 1879. Plaintiff figures the amount at $12, making in all $125.60. The jury can verify the calculation of interest.”

The defendant’s counsel objected to the court’s communicating anything whatever to the jury not in the presence of the counsel, and especially objected to the communication sent, and excepted to the course pursued by the trial judge in sending it.

It seems to be well settled in this state that no communication whatever ought to take place between the judge or justice and a jury after a case has been submitted, unless it is in open court and, where practicable, in the presence of counsel; that where there has been an infraction of this rule the judgment should be reversed, and that the court will not stop to inquire whether the information given by the judge or justice was material, or had any influence upon the verdict of the jury. Bunn v. Croul, 10 Johns. 239; Taylor v. Betsford, 13 Johns. 487; Loan Co. v. Mix, 51 N. Y. 558; Valentine v. Kelley, 54 Hun, 78, 7 N. Y. Supp. 184; Gibbons v. Van Alstyne (Sup.) 9 N. Y. Supp. 156; People v. Linzey, 79 Hun, 23, 29 N. Y. Supp. 560; High v. Chick, 81 Hun, 100, 30 N. Y. Supp. 652; Seeley v. Bisgrove, 83 Hun, 293, 31 N. Y. Supp. 914; Wheeler v. Sweet, 137 N. Y. 435, 33 N. E. 483; Plunkett v. Appleton, 51 How. Prac. 469; Sargent v. Roberts, 1 Pick. 337, 344. Applying this rule to the case before us, it is quite manifest that the learned county judge erred in communicating with the jury without the consent and under the objection *511of the defendant, and that the county court erred in not granting the appellant’s motion for a new trial upon that ground.

As the motion for a new trial, so far as this question is concerned, was founded upon an error in fact, the respondent’s contention that, under section 1002 of the Code of Civil Procedure, the motion could not be made unless noticed before the expiration of the time within which an appeal could be taken from the judgment, cannot be sus-, tained. The provisions of that section, so far as applicable here, are:

> “But where it [a motion for a new trial] is founded upon an allegation of error in a finding of fact or ruling upon the law, made by the judge upon the trial, it cannot be made unless notice therefor be given before the expiration of the time within which an appeal can be taken from the judgment.’’

The motion here was for a new trial, not solely upon the ground of an error in a finding of fact or a ruling by the trial judge, but also for an error in fact which was within the knowledge of the court, and contained in the case and exceptions as made and settled. Without passing upon the question whether, under the circumstances of this case, errors in the finding of fact or rulings upon questions of law, if any, might be determined by us, we are of the opinion that the error of the court in communicating with the jury without the consent of the parties was an error in fact, which the appellant had a right to have reviewed, and that for such error the judgment should have been set aside, and a new trial granted by the county court.

It follows that the order appealed from should be reversed, with costs, and that the judgment of the county court should be set aside, and a new trial granted, with costs to abide the event.