
    William E. Pease, Respondent, v. Pennsylvania Railroad Company, Appellant.
    Fourth Department,
    March 16, 1910.
    . Appeal — appeal' from judgment only — costs — appeal from order denying new trial on ground of newly-discovered evidence. ■
    Where- a defendant in a negligence action appeals from the judgment only, the weight of the evidence as to. the negligence of both parties and the assump- ■ tion of' risk cannot be considered. The sole question is as to whether there is • any evidence for the jury upon those questions, or whether there was such a failure of evidence as to authorize a nonsuit.
    The Appellate Division will affirm an order denying a new trial upon the ground of newly-discovered evidence where four trials have resulted in a verdict for • the plaintiff and there is no likelihood that the defendant will succeed as long as the issues are submitted to a jury.
    As a motion for a new trial on the ground of newly-discovered evidence is necessarily made upon a case and exceptions, settled and filed, the prevailing party j is entitled to full costs of appeal, although he is also entitled to full .costs on a. simultaneous appeal from the judgment. This, because the case on an appeal from the decision of a motion for a new trial'on the ground of newly-discovered evidence embodies matters other than those taking place at trial and embodied, in the case on appeal from the judgment.
    McLennan, P. J., and Robson, J., dissented, in part.
    Appeal by the defendant, the Pennsylvania Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county, of Monroe on the 23d day of January, 1909, upon the verdict of a jury for $10,000.
    Also an appeal by the said defendant from an order entered in said clerk’s office on the 7tli day of December, 1909, denying the defendant’s motion for a new trial on the ground of newly-discovered evidence.
    
      Franje líumsey and Frnest G. WhitbecJc, for the appellant.
    
      Georgé I). Forsyth, for the respondent.
   Williams, J.:

The judgment and order should be affirmed, with separate bills of costs on the two appeals, except that the' costs of making amendments to case and exceptions should be charged but once.

First. The action was for negligence. A verdict was rendered for $10,000. ' The clerk’s minutes and the case and exceptions and the judgment state that a motion for a new trial under section 999 of the Code, upon the minutes, was made and denied, but no formal order to that effect appears in the record, and no notice of appeal from such order.

The appeal is from the judgment alone and, therefore, the weight of the evidence as to the negligence" of both' parties and assumed risk cannot be considered. The only question is whether there was any evidence for the jury upon these questions, or whether there was such a failure of evidence as to authorize a nonsuit. From the recitations in the- judgment and the affidavits on the motion it appears that there have been three trials of the case in addition to the assessment of damages on defendant’s default, when the jury rendered a verdict of $10,000.

The first trial was in November, 1907, when a verdict for plaintiff of $6,800 was rendered. Upon a motion by defendant upon the minutes, and on stipulation of plaintiff, this verdict was set aside and a new trial granted.

A second trial was had in September, 1908, when a verdict for plaintiff for $5,000 was rendered. This verdict on motion of defendant was set aside as contrary to and against the weight of the evidence, and a new trial granted.

The third trial was had in January, 1909, when the present verdict of $10,000 was rendered.

The injuries for which the action was brought were received by plaintiff’s head coming in contact with a low bridge in defendant’s yard in Rochester. He was brakeman and switchman. We cannot hold that the case was one for a nonsuit and, therefore, the question of the weight of evidence not being before us, not even as to the amount of the verdict, the judgment should be affirmed, unless the order appealed from, denying the motion for a new trial for newly-discovered evidence, is reversed and an order made for such new trial.

The appeal from the judgment was taken February 17, 1909. Thereafter the motion for a new trial for newly-discovered evidence was made. The affidavits seem to have been made at different times during the year 1909, but the motion was not heard until November of that year. The judge who tried the case heard the motion. His judgment was that a new trial should not be had for newly-discovered evidence. .The case has been tried four times, and I do. not think the defendant is likely to succeed so long as the questions involved are to be submitted to a jury. If it was entitled to a nonsuit, that question can be reviewed on appeal from the judgment to the Court of Appeals; This order I think, therefore, should be affirmed.

Second. As to the costs upon the appeal from the order denying motion for a new trial for newly-discovered evidence, of course the respondent is entitled to full costs upon the appeal from the judgment. The question is whether he should also have full costs upon the appeal from the order,.

The motion for such new trial had necessarily to be made upon a caseand exceptions settled. (Code Civ. Proc. §§ 997-999; Bantleon v. Meir, 81 Hun,162; Harris v. Gregg, 4 App. Div. 615.)

And in such case the prevailing party was entitled to full costs at Special Term, as upon an appeal to the Appellate Division, and this order expressly so provided.. (Code Civ. Proc. § 3251, subd. 3; Davis v. Grand Rapids Fire Ins. Co., 5 App. Div. 36, and cases therein referred to.)

Where the order appealed from is one made on any of the grounds specified in section 999 of the. Code of Civil Procedure, and’costs are allowed on an appeal from the judgment, no costs can be allowed on the appeal from the order. (Code Civ. Proc. § 3239; Syms v. Mayor, etc., 105 N. Y. 153, 158.) And very likely this, is so when the motion is made on a case and exceptions settled as well as when made upon the minutes alone. In either case only issues arising on the trial are involved, only one record made on appeal, only one set of points is needed and only one argument made. But where the question of newly-discovered evidence is involved the motion is independent of the trial, and affidavits are used raising questions not involved in the trial. On appeal a different record is made up, because these affidavits have no place in the record on the appeal from the judgment. A separate set of points and a separate argument of the new questions involved are . necessary, and we think, in view of these considerations, a full bill of costs should.be allowed on-the appeal from the order under sub-. division 4 of section 3251 of the Code {supra),- notwithstanding the provisions of section 3239 {supra).

' This was the view taken' by the Appellate Term of the Supreme Court in Streep v. McLoughlin (36 Misc. Rep. 165), which we approve of.

There is no authority for allowing ten dollars costs. If any are allowed they should be full costs under subdivision 4 of section 3251 {supra).

So far as opinion relates to the appeal from the order, all concurred, McLennan, P. J., concurring except as to the amount’ of costs, being of the opinion that the respondent is entitled to only, ten dollars costs and disbursements on this appeal, except Robson, J., who dissented upon the ground that the court should have granted a new trial.

Order affirmed, with costs.

So far as opinion relates to the appeal from the judgment, all’concurred, except Robson, J., who dissented upon the ground that the motion for a new trial upon the ground of newly-discovered evidence should be granted.

Judgment affirmed, with costs.  