Opinion
Argued September 28, 1966
Decided October 27, 1966
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, HAROLD R. SODEN, J.
Clayton T. Bardwell for appellants.
James F. Carroll, John Serbalik and J. Raymond Amyot for respondents.
Order modified, without costs, by adding a direction that there be a new trial as to both plaintiffs. Reasonably construed in a situation like this, CPLR 4110 (b) requires a new trial when it is learned after the trial that either the injured plaintiff, or her parent who sues as her guardian ad litem as well as in his own right, is related to a juror within the sixth degree.
Concur: Chief Judge DESMOND and Judges FULD, VAN VOORHIS, BURKE, SCILEPPI and BERGAN.
While CPLR 4110 (b) mandates a new trial in the suit brought by the plaintiff Joseph Maiello in his own right, the same result is not required in the suit brought by the infant plaintiff. Where, as here, it is shown that the defendant was in no way prejudiced in fact, it is an unnecessary elevation of form over substance to require a new trial as to the infant plaintiff also. The order of the Appellate Division should, therefore, be affirmed.