
    COHEN v. SOFRANSKI.
    (Supreme Court, Appellate Term.
    October 27, 1905.)
    New Trial—Conditions—Tbial Fee.
    An order setting aside a verdict in favor of defendant and granting a new trial should be conditioned on payment of a trial fee by plaintiff.
    [Ed. Note.—For cases in point, see vol. 37, Cent. Dig. New Trial, §§- 322, 323.)
    Appeal from City Court of New York, Special Term.
    Action by Harris Cohen against Henry Sofranski. From an order setting aside a verdict and granting a new trial, defendant appeals.
    Affirmed.
    Argued before SCOTT, P. J., and BISCHOFF and FITZGERALD, JJ.
    Manheim & Manheim, for appellant.
    Feltenstein & Rosenstein, for respondent.
   SCOTT, P. J.,

The trial justice, who had the advantage of a personal observation of the witnesses, was in a much better position than we can possibly be to judge of the degree of credence which should be given to the witnesses. For that reason we are unwilling to interfere with his order setting aside the verdict and granting a new trial. The order should, however, have been conditioned upon the payment by plaintiff of a trial fee at least. Landrigan v. Brooklyn Heights R. R. Co., 23 App. Div. 43, 48 N. Y. Supp. 454; Falkenberg v. O’Neill (Sup.) 88 N. Y. Supp. 378.

The order will therefore be so modified as to provide that the verdict is set aside and a new trial of the issues granted upon payment by plaintiff of $30 trial fee within 20 days, and in default of such payment that the motion will be denied; and the order, as so modified, is affirmed, without costs in this court. All concur.  