Macaulay v. Anthony — 127 N.Y.S. 420

Majority

p. 420

MACAULAY v. ANTHONY.

(Supreme Court, Appellate Term.

February 9, 1911.)

Headnote

New Trial (§ 161^[1] )—Conditions—Costs.

An order granting a new trial for newly discovered evidence should be made only upon reasonable terms; and an order granting defendant a new trial on that ground, with only $10 costs, will be modified, so as to require defendant to pay all costs and disbursements to date.

[Ed. Note.—For other cases, see New Trial, Cent. Dig. §§ 321-323; Dec. Dig. § 161.^[1] ]

Appeal from City Court of New York, Trial Term.

Action by Margaret Macaulay against Edgar G. Anthony. From an order of the City Court of the City of New York, setting aside a judgment for plaintiff and ordering a new trial, plaintiff appeals.

Affirmed, as modified.

See, also, 66 Mise. Rep. 173, 121 N. Y. Supp. 278 .

Argued before HENDRICK, LEHMAN, and DELANY, JJ.

Jay Noble Emley, for appellant.

Richard J. Donovan (Herbert D. Cohen, of counsel), for respondent.

The plaintiff appeals from an order granting a new trial on the ground of newly discovered evidence. The justice sit- ■ ting at Special Term has carefully analyzed the affidavits presented in his opinion on the motion, and has determined that a new trial should be granted. Although I' should probably have reached the opposite conclusion, if the question were presented to me as an original motion-, I feel that it cannot be said with any certainty that the justice’s discretion has not been exercised soundly in granting a new trial. The order is, however, a distinct favor granted to the defendant, and should have been granted only upon reasonable terms.

It should therefore be modified, by imposing upon him the payment of all costs and disbursements to date as a condition to the granting of the motion, and, as modified, be affirmed, without costs to either party upon this appeal. All concur.