Kummer v. Christopher & East Tenth Street Railroad

Our reversal of the judgment and order appealed from proceeded upon the ground that the verdict was contrary to the evidence, see opinion, 50 St. Rep., 332 , and the purport of respondent’s present motion is to have the ground of reversal recited in the order entered upon our decision of the appeal. Such a recital is, however, not only unnecessary, Goodwin v. Conklin, 85 N. Y., 21 , but also without authority, Harris v. Burdett, 73 id., 136 , and respondent’s motion in this respect is denied.

The order of reversal should, however, be resettled by striking out the words “ with costs to abide the event ” at the conclusion of the order, and inserting in lieu thereof the words “ upon condition that appellant shall within twenty days after service of this-order, with notice of entry thereof, pay to the respondent, or his attorney of record, the costs and disbursements of the last trial, to be taxed on notice, and if such costs and disbursements be not so paid, then respondent may apply, on proof by affidavit that the costs and disbursements remain unpaid, for an order affirming the judgment and order appealed from, with costs.”

It does not appear from the record of this appeal that appellant protested in any manner against the submission of the case to the jury, and for the omission so to do it has been the invariable, and is the settled practice of the courts at general term, to impose payment of the costs of the former trial upon the party against whom the verdict was rendered as a condition of granting a new trial on the ground that the verdict is against the evidence or the weight of the evidence, Jackson v. Thurston, 3 Cowen, 342; Bank of Utica v. Ives, 17 Wend., 501 ; Brown v. Bradshaw, 1 Duer, 199 ; Overing v. Russell, 28 How. Pr., 151 ; East River Bank v. Hoyt, 22 id., 478; North v. Sargeant, 20 id., 519; Kelly v. Frazier, 27 Hun, 314 ; Bailey v. Park, 5 id., 41; Murphy v. Haswell, 65 Barb., 380 ; Wilson v. Lester, 64 id., 431 ; Weed v.