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SIMON ULLMAN, an Infant, by SAUL J. ULLMAN, His Guardian ad Litem, Appellant, v. LAURA TUBBS et al., Respondents. SAUL J. ULLMAN, Appellant,

Appeal by both plaintiffs from an order made at Special Term denying their motions for a new trial on the ground there were irregularities in the manner in which the jury arrived at its verdicts, and an appeal by the infant plaintiff, Simon Ullman, from a judgment rendered upon a verdict in his favor for $2,000, on the ground of inadequacy, and from an order denying plaintiffs' motions to set the verdict aside and for a new trial. Early in the evening the jury were instructed as to returning sealed verdicts, and were admonished not to discuss the case and to return to court the following morning. Later in the evening a court attendant permitted the jury to separate and to go to their homes. The following morning the jury returned to their jury room, and sometime later in the forenoon returned the sealed verdicts. Although permitted to separate, the jury had never been discharged until it had rendered its verdicts. Such procedure is not necessarily fatal to the verdicts. ( Porret v. City of New York, 252 N.Y. 208; Hand v. Hill, 255 App. Div. 1016.) Moreover, counsel for all parties were present on the following morning while the jury remained in its jury room, and no timely objection or request was made to the court complaining of the procedure followed. The order denying plaintiffs' motions for a new trial, entered on January 8, 1952, is affirmed, without costs. The infant plaintiff sustained serious and painful bodily injuries, among which was a fractured right wrist which had to be rebroken and reset a second time, with a resulting permanent loss of motion of the right hand. We think the verdict of $2,000 was inadequate to compensate for the injuries sustained. The judgment in favor of Simon Ullman, an infant, by Saul J. Ullman, his guardian ad litem, against Sara Lee Freedman, entered on December 18, 1951, and the order denying plaintiff's motion to set aside the verdict as inadequate, are reversed on the facts and a new trial granted, with costs to appellant to abide the event, unless within ten days after the entry of the order herein respondent Sara Lee Freedman stipulates to increase the amount of the verdict to $3,500, in which event the judgment, as so increased, is affirmed, without costs. Foster, P.J., Heffernan, Brewster, Bergan and Coon, JJ., concur. [See post, p. 1122.]

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ULLMAN v. TUBBS
(May 7, 1952)