Bloomingdale v. Steubing — 30 N.Y.S. 1056

Majority

p. 1056

(10 Misc. Rep. 229.)

BLOOMINGDALE et al. v. STEUBING.

(City Court of New York, General Term.

November 20, 1894.)

Headnote

Practice in Civil Cases—Resettling Order.

Where an order setting aside as inadequate a verdict for plaintiff properly expresses the decision of the court, a motion to resettle the order so that a new trial should be granted on condition that plaintiffs pay the costs of the first trial, is properly refused.

Appeal from special term.

Action by Joseph B. Bloomingdale and others against Henry Steubing. From an order denying a resettlement of an order setting aside a verdict, defendant appeals. Affirmed.

Argued before EHRLICH, C. J., and VAN WYCK and MCCARTHY, JJ.

Guggenheimer, TJntermyer & Marshall, for appellant.

D. S. Ritterband, for respondents.

The jury at the trial having rendered a verdict in favor of the plaintiffs for six cents damages, the trial judge, upon his minutes, set the same aside as inadequate. The defendant moved to resettle the order, so that the new trial granted should be on the condition that the plaintiffs pay to the defendant the costs of the trial which resulted in the verdict. The trial judge refused to resettle the order, and the defendant appeals.

We think the trial judge was under no obligation to resettle the order as requested. The order, as originally made, expressed the decision as he rendered it, so that resettlement was unnecessary. If any error was committed in granting the original order, or in failing to impose proper terms thereon, it might have been reviewed on appeal from the original order, without the necessity of appealing from the order declining to resettle. For this reason the order appealed from must be affirmed, with costs. All concur.