Majority
p. 41FRANKLIN BAILEY, by Guardian, etc., Respondent, v. ROBERT S. PARK, Appellant.
Headnote
New trial — on ground that verdict is against evidence — costs must he paid as’ condition of.Where the court grants a new trial on the ground that the verdict is against the evidence, it can only he ordered on the payment of costs.
This is an appeal from an order of a county judge, ordering a new trial in an action tried before him with a jury. The order set aside the verdict of the jury and granted a new trial, on the ground of excessive damages, and for insufficient evidence, with costs to abide the event. Plaintiff appealed from that portion of the order which reads as follows: “ Said verdict is set aside, and new trial ordered on said motion, with costs to abide the event.”
D. F. Qott, for the appellant.
Jjymcm c& James, for the respondent.
It seems to be the settled rule that where the court grants a new trial on the ground that the verdict is against the evidence, it can only be ordered on the payment of costs. ( Ward v. Woodburn, 27 Barb., 346 ; North v. Sergeant, 14 Abb., 226 ; S. C., 33 Barb., 352 ; East River Bank v. Hoyt, 22 How., 480 .)
In the case of Boyer v. Brown (noted in 4 N. Y. S. C., 698), the verdict was set aside by the county judge, on the ground that
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the verdict was against the evidence and the law as laid down by the court.
The order should be modified by striking out the words, “ with costs to abide the event,” and the words substituted, “upon the payment of costs,” and as so amended affirmed.
Present — MulliN, P. J., Smith and Gilbert, JJ.
Ordered accordingly.