Opinion
February 26, 1937.
Order of the County Court of Orange county denying plaintiffs' motion to set aside the verdicts on the ground of the alleged misconduct of a juror, and vacate the judgments entered thereon in personal injury actions, reversed on the law and the facts, without costs, and the motion granted, without costs. We accept the version of defendants' counsel that he did not recognize or recall the juror in question at the time the juror was accepted by both sides. However, when the relationship on a prior occasion between the juror and defendants' counsel was disclosed, a mistrial should have been granted in the absence of an agreement of all the litigants to proceed with eleven jurors. Plaintiffs' counsel should have joined with defendants' counsel's belated willingness thus to proceed. His clients, however, may not be required to waive their constitutional right to a jury of twelve indifferent, unbiased men. The weight of the evidence indicates that the juror did not correctly answer the question propounded to him. Whether this was due to inattention or not is presently unimportant. Lazansky, P.J., Hagarty, Carswell, Davis and Johnston, JJ., concur.