
    Rosie Rothenberg, Appellant, v. Brooklyn Heights Railroad Company, Respondent.
    First Department,
    December 17, 1909.
    Appeal from order denying resettlement of order— costs on setting aside , verdict.
    An appeal from an order denying a motion to.resettle an order setting aside a verdict and granting a new trial raises no questions arising under the original order.
    An order setting aside a verdict and granting a new trial under section 999 of the Code of Civil 'Procedure because of error,-mistake or misconduct by the jury, should not he conditioned on the payment of costs "to the party who obtained the verdict. Costs are proper only when the erroneous verdict was caused by the fault, mistake, omission or improper conduct of a party to- the action.
    Appeal by the plaintiff, Rosie Rothenberg, from an order of the Supreme Ooui't, made' at the Hew York Trial Term and entered in the office of the clerk of the county of Hew'York on the lltli day of October, 1909, denying the plaintiff’s motion to resettle an order which set aside, the verdict of a jury in favor of plaintiff and granted a hew trial.
    
      
      Jesse S. Epstein of counsel [Epstein Brothers, attorneys], for the appellant.
    
      D. A. Marsh of counsel [George B. Yeomans, attorney], for the respondent.
   Clarke, J.:

This was a negligence action and resulted in a verdict in favor of the plaintiff. The learned trial court set aside the verdict and granted a new trial on the ground that the-verdict was against the weight of evidence. Thereafter plaintiff’s counsel made a motion for an order resettling said order- by inserting a provision therein to the effect that as a condition for the granting óf a new trial the defendant pay to the plaintiff’s attorneys the costs to date and in default thereof the verdict of the jury be reinstated. Said motion was denied by an Order entered oh October 11, 1909. This appeal is taken from said order denying the motion for resettlement of the original order.

As no appeal is taken from the original order, the appeal from the order denying a motion to resettle raises no questions under the original order. As the question sought to.be raised is, however, an important question of practice about which there has been diversity of opinion, we have concluded to express our views for the guidance of the-several Trial Terms in this department.

The ’ question, broadly stated, is whether when a. verdict is set aside under the provisions of section 999 of the Code of Civil Procedure for excessive or inadequate damages or as against the weight of -evidence, that is, for a mistake of. the jury, the party who has obtained the verdict is entitled as matter of right to be paid the costs by his adversary as a condition to the granting of the motion made by that adversary, to set aside-the verdict.

In Brown v. Foster (1 App. Div. 578), where a verdict had been set aside as inadequate, the Appellate Division in the First Department said : “ When a new trial is granted for error of the jury, costs of the former trial should be imposed upon the party asking for it as a condition of granting the favor; (Bailey v. Park, 5 Hun, 41; O'Shea v. McLear, 16 N. Y. St. Repr. 482.)”

In Silverman v. Dry Dock, East Broadway & Battery R. R. Co. (69 App. Div. 22), where a verdict for the plaintiff had been set , aside as against the weight of evidence, the Appellate Division in the First Department said: “ The order, however, is erroneous in that the payment of costs of the trial should have been imposed upon the defendant,” and modified the order accordingly.

. In Helgers v. Staten Island, Midland R. R. Co. (69 App. Div. 570), where'a verdict had been set aside as against the weight of evidence and as excessive, the Appellate Division in the Second Department said, citing Brown v. Foster (supra): “We have had frequent occasion to correct the violation of this rule, among recent instances being Fawdrey v. Brooklyn Heights R. R. Co. (64 App. Div. 418); Cohen v, Brooklyn Heights R. R. Co. (66. id. 613) Harrington v. Brooklyn Heights R. R. Co. (Id. 613) and Curry v. N. Y. & Queens Co. R. Co. (Id. 614). In accordance with the authority, of these cases and the long-settled practice of the Supreme Court, the order must be modified by inserting a provision requiring the defendant to pay the costs of the trial and all disbursements in the action to date.”

In the Third Department, on the contrary, the rule has been established that a party should not invariably be charged with costs as a condition to the granting of such a motion, but that the matter rested in the sound discretion of the trial court. (People v. Glasgow, 30 App. Div. 97; Lashaway v. Young, 76 id. 177.)

In the Fourth Department in Waltz v. Utica & Mohawk Valley R. Co. (116 App. Div. 563) Mr. Presiding Justice McLenhah said: “ The only question presented by this appeal is whether or not a defendant is entitled to costs absolutely as matter of law where, upon plaintiff’s motion, a verdict in his favor is set aside and a new trial granted upon the ground that the amount of damages awarded by the jury is insufficient. * * * If it be assumed that the inadequacy of the verdict resulted solely from the error, mistake or misconduct of the jury, we are unable to see how or why the party moving for the new trial should be punished because of an injustice done him without fault on his part. * * * We appreciate that the practice is not uniform in the different departments of the State, but after a careful .examination of the adjudicated cases and consideration of the reasons urged in support of appellant’s contention, we are constrained to adhere to the rule adopted in this department that in setting aside a verdict and granting a new trial under section 999 of the' Oode of Civil Procedure £ because the verdict is for excessive' or insufficient damages,’, the trial court is not required as matter of law to award costs absolutely against the complaining party, but that the question as to payment of costs in such case is within the discretion of the trial court/subject, of course, to review by this court, and that where it does not appear that the erroneous verdict resulted from the fault or mistake of the aggrieved party, the discretion of the trial court,, exercised as in the ease at bar, will not be disturbed.”

In Cohen v. Krulewitch (77 App. Div. 126) Mr. Justice Ingraham, writing for this court, said : “ Where a motion is made to set aside a verdict upon the ground that the plaintiff has.failéd to prove his case, there is no rule that requires that costs should be imposed as a condition for granting a new trial. , In sucli a case a new .trial is not granted as a matter of discretion, but as a matter of right, and we do not think the court would then be justified in imposing costs as a condition for granting a new trial. While it is proper for the court to impose costs upon granting a.new trial where there was a proper case for the submission of the question to the jury, but where for some reason the court is satisfied that the verdict was not a fair determination of the question submitted to them, or that justice, requires that the case should he submitted to another jury, this is not such a case.” It should be said that although the decisions hereinbefore cited in this department have not been followed by this court for a number of years, they have not been formally overruled.

Upon a thorough re-examination of this question in the.light of the’decided cases, we think that the rule as established by thé Appellate Division in the Third and Fourth Departments should be adopted in this.department as formulated by the presiding justice of the Fourth Department in Waltz v. Utica & Mohawk Valley R. Co. (supra). There may be cases where the erroneous verdict lias been caused by the fault, mistake, omission or improper conduct of a party to the action. The imposition of costs in such a case would be justified, but it is entirely illogical, when justice requires the setting aside of a verdict due to the mistake of the jury, for which the party is in no way responsible, that he should he penalized therefor.

For the reason first hereinbefore stated, the appeal should be dismissed, with ten dollars costs and disbursements to the respondent.

Ingraham, Laughlin, Houghton and Scott, JJ., concurred.

Appeal dismissed, with ten dollars costs and disbursements.  