Opinion
May 17, 1971
In consolidated actions for assault and battery and negligence to recover damages for personal injuries, plaintiffs appeal from an order of the Supreme Court, Kings County, dated April 20, 1970, which (1) denied plaintiffs' motion (a) to reinstate jury verdicts (on the issues of liability only) for plaintiffs Balbera and Seidel against defendants Francis and New York Rangers, Inc., and for plaintiff Ginesin against defendant Hadfield and (b) for judgment in favor of plaintiff Ginesin against defendant New York Rangers, Inc., and (2) ordered a new trial. Said verdicts had been set aside by the trial court. Order reversed, except as to the action of plaintiff Ginesin against New York Rangers, Inc., with one bill of costs jointly to appellants against respondents New York Rangers, Inc., Francis and Hadfield; plaintiffs' motion granted to the extent of reinstating the above-mentioned verdicts; order affirmed as to the action of plaintiff Ginesin against New York Rangers, Inc., without costs; and as to the latter action the case is remanded to the trial court for a new trial. It was error to declare a mistrial and order a new trial on the actions in which the jury arrived at verdicts for plaintiffs. The jury reported verdicts on all actions but that of Ginesin against New York Rangers, Inc. It disagreed on that action. After a poll of the jury it appeared that the votes of one juror were inconsistent with the instructions of the court. The mistrial was declared on this basis. We find that any inconsistency in the voting of this juror was immaterial. In each action in which the jury agreed on a verdict, this juror voted with the minority. There were 10 out of 12 votes cast in favor of the verdicts. Except for this fact there was no general confusion evidenced by the jury which warranted the court's declaring a mistrial. Since the jury disagreed in the action of Ginesin against New York Rangers, Inc., it was proper for the Trial Judge, on being satisfied of the jury's inability to agree, to have discharged the jury on his motion and directed that another jury be drawn to hear that issue ( Matter of Taylor, 271 App. Div. 947). There were questions of fact for the jury on the liability of New York Rangers, Inc., under a theory of respondeat superior (cf. Curran v. Buckpitt, 225 App. Div. 380). We have considered the argument of respondents that the verdicts are against the weight of the evidence and find it without merit. Rabin, P.J., Hopkins, Munder, Martuscello and Shapiro, JJ., concur.