
    WALTZ v. UTICA & M. V. RY. CO.
    (Supreme Court, Appellate Division, Fourth Department.
    December 28, 1906.)
    Appeal—Discretion or Court—Awarding Costs.
    The court, on setting aside a verdict, as authorized by Code Civ. Proc. § 999, because of the insufficiency of the damages awarded, is not required as a matter of 'law to award costs against the complaining party, but the question of costs is within its discretion, subject to review, and where it does not appear that an erroneous verdict resulted from the fault or mistake of the aggrieved party, the discretion of the court in setting aside the verdict, with costs, to the adverse party to abide the event, will not be disturbed.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error. §§ 3881-3888.]
    Appeal from Special Term, Oneida County.
    Action by Jane Waltz against the Utica & Mohawk Valley Railway Company. From an order setting aside the verdict for plaintiff and granting a new trial, with costs to defendant to abide the event, on the ground that the damages awarded are insufficient, defendant appeals. Affirmed.
    The action was commenced on the 24th day of July, 1905, to recover damages alleged to have been sustained solely through the negligence of the defendant. None of the evidence is contained in the record, and therefore it must be conclusively presumed that the verdict was properly set aside.
    
      Argued before McLENNAN, P. J„ and SPRING, WILLIAMS, NASH, and KRUSE, JJ.
    Warnick J. ICernan, for appellant.
    E. D. Lee, for respondent.
   McLENNAN, P. J.

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.

It has long been established "by authority that such disposition as to costs when a new trial is granted under section 999 of the Code of Civil Procedure because of errors committed by the trial justice is proper. In the case at bar, so far as appears, the insufficiency of the' verdict may have resulted entirely because of errors committed by the trial justice, because certain elements of damages were improperly withheld from the consideration of the. jury, or for various other causes. But, even 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. Section 999 of the Code of Civil Procedure makes no such distinction. The language is:

“The judge * * * may, in his discretion, * * * set aside the verdict, * * * and grant a new trial upon exceptions; or because the verdict is for excessive or insufficient damages. * * * ”

By the language of the section the trial justice is given precisely the same power to set aside a verdict because insufficient as because of error in the admission or rejection of evidence which is raised by-objection and exception, and we can conceive of no good reason why a different rule as to costs should be applied where the mistake which results in injury to a party is made by the jury rather than by the court. If the trial judge can see that the jury have probably rendered an insufficient verdict because of the fault or neglect of the party complaining, but that still justice requires that a new trial be had, then certainly it should be granted upon condition that such party pay the costs of the trial. But in the case at bar no such condition is made to appear, and we must assume that the verdict rendered was unjust to the plaintiff and that such injustice resulted without fault or mistake 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 Code 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 case at bar will not be disturbed.

It follows that the order appealed from should be affirmed, with $10 costs and disbursements to the respondent to abide event.

Order in so far as it relates to the costs awarded thereby affirmed, with $10 costs and disbursements to respondent to abide event. All concur.  