Majority
Action to recover treble damages for trespass upon plaintiff’s land by reason of respondents’ entry thereon and the cutting down of a terrace and removal of soil therefrom. Plaintiff appeals (1) from an order dated June 14, 1940, denying plaintiff’s motion to review and disallow the taxation of costs, and to vacate the dismissal of the complaint as to respondents; (2) from so much of an order dated July 23, 1940, as denied plaintiff’s motion for permission to renew his prior motion and to resettle the order dated June 14, 1940; and (3) from the amended judgment entered July 23, 1940, which dismissed plaintiff’s complaint as to respondents, with costs. Amended judgment reversed on the facts and a new trial granted, with costs to appellant to abide the event, upon payment by appellant to respondents, within ten days from the entry of the order hereon, of the sum of $117.70 costs as taxed. The learned trial justice, in refusing to grant a mistrial on plaintiff’s motion, improperly exercised the discretion vested in him. The appeals from the two orders are dismissed, without costs, as academic. Lazansky, P. J., Johnston, Adel, Taylor and Close, JJ., concur.