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Carter v. Interurban Street Railway Co.

86 N.Y.S. 206 Court N.Y. App. Term Decision date 1904-01-25 English

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p. 206
CARTER v. INTERURBAN ST. RY. CO.
(Supreme Court, Appellate Term.
January 25, 1904.)

Headnote

1. New Tbial—Imposition of Costs.
Where a verdict Is set aside as against the weight of evidence, costs; should be imposed as a condition of granting the new trial, even in a case of seeming hardship
2. Same—Review.
On appeal from a judgment the question as to the reasonableness of conditions imposed in an order granting appellant a new trial, of which he did not take advantage on the ground that the conditions were too onerous, is not reviewable.
3. Same—Motion fob New Trial—Granting Motion—Failure to Take New Trials-Appeal.
A party who fails to take advantage of an order granting him a new trial has no ground for complaint on an appeal from the judgment.
f 1. See New Trial, vol. 37, Cent. Dig. § 323.
Appeal from Municipal Court, Borough of Manhattan, Eleventh District.
Action by Edward Carter against the Interurban Street Railway Company. From a judgment in favor of plaintiff, defendant appeals.. Affirmed.
See 84 N. Y. Supp. 134 .
Aigued before FREEDMAN, P. J., and MacLEAN and DAVIS, JJ.
A. K. Wing and Wm. E. Weaver, for appellant.
J. Baldwin Hands, for respondent.

The defendant’s motion to set aside the verdict of the jury after its rendition was granted by the trial justice upon terms with which the defendant refused to comply upon the ground that the conditions imposed were too onerous in view of the small.

p. 207
amount involved. It is well settled that, where a verdict is set aside as against the weight of evidence, costs should be imposed as a condition of granting the new trial, even in a case of seeming hardship. O’Shea v. McLear, 15 Civ. Proc. R. 69, 1 N. Y. Supp. 407 . The defendant does not appeal from the order entered upon the motion to set aside the verdict. We are not, therefore, in a position to review the question of the unreasonableness of the terms imposed. As the record now appears, the defendant’s motion to set aside the verdict prevailed, and yet it failed to avail itself of the benefits of the order made thereon. Under these circumstances the defendant has no ground for complaint, and the judgment must be affirmed, with costs.

Judgment affirmed; with costs.