
    FRANKLIN BAILEY, by Guardian, etc., Respondent, v. ROBERT S. PARK, Appellant.
    
      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.
   E. DaewiN SMITH, J. :

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 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.  