
    Patrick Mahar, App'lt, v. David H. Simmons, Resp’t.
    
      (Supreme Court, General Term,, Third Department,
    
    
      Filed February, 1888.)
    
    1. VERDICT—GROUNDS FOR SETTING ASIDE.
    In an action for malicious prosecution and false imprisonment, a verdict was rendered in favor of the plaintiff, and from the judgment entered thereon an appeal was taken. Upon that appeal, the judgment was reversed and a new trial granted, upon the ground that the verdict was contrary to the evidence, which was insufficient to show want of prohable, cause. Upon the new trial a still larger verdict was rendered in favor of the plaintiff, on substantially the same evidence. This was set aside by the trial judge. Held, that the object in reversing the judgment on the former trial having been to secure a dispassionate consideration of the evidence, and that having failed, the latter verdict was properly set aside.
    2. Same—Teems imposed on pabtt in whose favob motion to set aside IS GBANTED.
    
      Held, that when the court in the exercise of its discretion set aside a verdict, it properly laid upon the party in whose favor the discretion was exercised, the payment of the costs of the trial.
    
      Lamott W. Rhodes, for resp’t; Galen R. Hitt, for app’lt.
   Landon, J.

Upon the former appeal in this case, we set the verdict of $200 aside and ordered a new trial. We did this in the exercise of our discretion. We thought injustice had been done, and that it was proper to submit the case again to the consideration of a jury. This has been done, and another jury, upon substantially the same facts as before, has rendered a verdict of $750. The trial judge set the verdict aside because it appeared to be in contempt of the advice of this court. The case is not free from the suggestion of passion or prejudice on the part of the jury. When this court, in the exercise of its discretion, sets a verdict aside and orders a new trial, it does not intend to withdraw the case from the consideration of the jury, but it intends that another jury shall consider it, with the dispassionateness which it is the policy of the law to procure by such retrial. In the present case the object of the court has not only been thwarted by the action of the jury, but the defendant has been punished by an increased' verdict. If the jury had rendered the same verdict as before, we should have been inclined to acquiesce upon the ground either that the adherence of the jury to their former verdict had fairly demonstrated that we were mistaken in sup posing it to be unjust, or, that it would not be expedient to prolong the litigation._ We do not think, however, that we ought to accept this increased verdict; for thereby we would seem to invite increased vindictive damages, if the jury should be led to believe that the court did wrong in setting the first verdict aside as unjust.

We agree, however, that when a verdict is set aside in the discretion of the court, it ought to be upon payment of the costs of the trial by the party in whose favor the discretion is exercised, and that no reason exists why this case should be made an exception to this general rule.

We modify the order so as to set aside the verdict, and grant a new trial only upon payment of costs of the trial by the defendant within twenty days after service of a copy of the order to be entered hereon.

But we conclude that if the plaintiff will stipulate to reduce the verdict to $200 the order may be reversed, and. plaintiff may have judgment upon such verdict with full costs in both courts.

Learned, P. J., and Ingalls, J., concur.  