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Smith v. City of New York

55 A.D. 90 Court N.Y. App. Div. English

Delivered by Jenks, J.:

Contents

Majority

p. 90
Sarah A. Smith, Respondent, v. The City of New York, Appellant.

Headnote

New trial for erroi' of law by the court—costs allowable on the motion therefor.
An order granting a new trial for errors of law on the part of the trial judge should he made conditional on the payment by the moving party of .ten dol lars costs of the motion to abide the event, and not on the payment by such party of fifty dollars costs absolutely.
p. 91
Appeal by the defendant, The City of Hew York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 10th day of May, 1900, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 9tli day of April, 1900, denying the defendant’s motion for a new trial made u]Don the minutes, unless within ten days after service of the order the defendant should pay $50 to the plaintiff.
William J. Carr [R. Percy Chittenden with him on the brief], for the appellant.
Thomas F. Magner, for the respondent.

The order granting the new trial to the - defendant was made on the minutes and "on the exceptions. Ho other ground is specified, and, therefore, the relief was granted on account of the errors of law of the learned trial justice. (Rule 31.) The order is made conditional on the payment of fifty dollars by the defendant. I think that the order is improper, inasmuch as the new trial is granted, not as a matter of favor, but as a matter of right. The practice authorized by such cases as Bailey v. Park ( 5 Hun, 41 ); O'Shea v. McLear (15 Civ. Proc. Rep. 69); Lyons v. Connor ( 53 App. Div. 475 ) and the like does not apply. In O'Brien v. Long ( 49 Hun, 80 , 82) Barker, J., speaking of the rule of Bailey v. Park (supra), says: “ In practice this rule is not strictly applied when the error or mistake complained of has.been committed by a judge.” In Randall v. Albany City Nat. Bank ( 1 N. Y. St. Repr. 592 ) the court, per Bookes, J., Lardón and Parker, JJ., concurring, struck out the motion costs allowed by the trial justice in granting a motion for a new trial on error of law. In Anderson v. Rome, W. & O. R. R. Co. ( 54 N. Y. 334 , 343) the court announces the principle thus : “ But, when a party asks a new trial as a matter of right, because some legal error was committed on the trial, this court has no discretion to grant or withhold it, but, finding error, is bound to reverse the judgment and grant a new trial and cannot impose such a condition.” It is hard to see why this rule should not apply in any court where the new trial is of right and not of favor.

p. 92
(3 Wait Pr. 512, 514.) In Newman v. French ( 45 Hun, 65 , 68) the court, per Haight, J., Smith, P. J., and. Bradley, J., concurring, say that where the motion for a new. trial is made upon the minutes, motion costs only are allowable. The order should he modified so as to provide for ten dollars costs, and the costs should not be absolute, but should abide the event. (Van Rensselaer v. Dole, 1 Johns. Cas. 279 , 280, especially the note ; Knapp v. Curtis. 9 Wend. 60 ; Robbins v. Hudson River R. R. Co., 7 Bosw. 1 .)

We do not deem it necessary to state the law as a guide, for the new trial, for there are many adjudications, of our' highest court which deal with almost every possible .phase of the claims for damages due to accidents in consequence of the icy or snowy condition of streets óf municipal corporations.

All concurred.

Order granting a new trial modified in accordance with ppinion of Jenks, J., and, as modified, affirmed, without costs of this appeal-to either party.

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