
    John Cooper, Appellant, v. Forty-Second Street, Manhattanville & St. Nicholas Avenue Railway Company, Respondent, and The City of New York, Defendant.
    Supreme Court, Appellate Term, First Department,
    December 8, 1938.
    
      Silas B. Axtell, for the appellant.
    
      Alfred T. Davison, for the respondent.
   Per Curiam.

Defendant railway company upon the granting of its motion for a mistrial accepted the condition imposed requiring it to pay the new jury fee. Plaintiff accordingly, in restoring the case to the calendar by notice, was entitled to rely upon defendant’s fulfilling such condition and paying the jury fee under rule 13 of the Rules of the Municipal Court (Central Jury and Non-jury Part) in three days.

Order reversed, with ten dollars costs, and motion granted, with ten dollars costs, unless the defendant within three days after service of order entered hereon pays the jury fee and the aforesaid costs. Upon compliance with condition order affirmed, and cause directed to be placed on the jury calendar for trial upon a day certain.

All concur. Present — Lydon, Hammer and Shientag, JJ.  