Judgment of the Supreme Court, Westchester County, entered January 12, 1965 and order of said court dated January 18, 1965 affirmed, without costs. No opinion.
Brennan, Acting P.J., Rabin, Hopkins and Munder, JJ., concur; Benjamin, J. dissents and votes to reverse the judgment and the order and to grant a new trial, with the following memorandum:
While deliberating, the jury requested the rereading of all the testimony of two critical witnesses. Their testimony, in full, covered almost 400 pages of the record. Pointing out the length of time that this would take, the court suggested that the jury send out a note stating just what parts of the testimony it was interested in and he would have those parts reread to it. Without again communicating with the court or repeating its request for the rereading of testimony, the jury soon thereafter returned a verdict for defendant. The court did not inquire of the jury, before taking its verdict, whether it no longer desired the rereading of any of the testimony it had earlier requested. As this was a long trial and a close case on the facts, I believe the court's failure to make such further inquiry of the jury, before taking its verdict, was such prejudicial error as to require a new trial in the interests of justice ( Kerner v. Surface Transp. Corp., 266 App. Div. 356, affd. 293 N.Y. 881).