Opinion
September 21, 1972
Appeal from the Onondaga Trial Term.
Present — Goldman, P.J., Del Vecchio, Witmer, Cardamone and Henry, JJ.
Judgment and order unanimously affirmed, with costs. Memorandum: Appellant urges as a ground for reversal that during the course of jury deliberation a note was sent to the court by the foreman of the jury containing the following: "1. We request a floor plan and layout of the hotel room. 2. If we find for the plaintiff against the defendant, should we assess damages?". The note was given to a court attendant to be delivered to the presiding Justice. The attendant returned and told the foreman that there was no floor plan among the exhibits. There was in fact none. There is some question whether the court answered the second question. Both counsel agree that the court received the note while he was presiding over another trial and orally instructed the attendant who then orally gave the answer to the jury foreman. Neither attorney was present at the time. This was of course improper practice and it is clear that the action of the Judge was inadvertent. In such a situation the court should always summon the attorneys for all parties and the court stenographer and any action taken should be a matter of record (see Linke v. Savage, 39 A.D.2d 326, 327). On the record before us respondent was entitled to recover and inasmuch as no prejudice resulted to appellant by the court's action the jury's verdict should not be disturbed.