
    William H. Israel, Respondent, v. August Ury, Mark Mendelson and Alfred Mendelson, Appellants.
    (Supreme Court, Appellate Term,
    February, 1907.)
    New trial: Proceedings to procure new trial: Conditions on granting new trial — Payment of costs; Order granting new trial — Not reversed for failure to state grounds.
    Case — Scope and contents — Opinions — Appellate Term will refer to opinion of court below to ascertain grounds of decision.
    The Appellate Term will refer to the opinion of the court below to ascertain the grounds or reasons for its disposition of the case; and, where, on appeal from an order granting a new trial, it thus appears that the motion was granted on the ground that the verdict was contrary to the evidence and the order should, therefore, have imposed the payment of the costs of the first trial upon the defendants, it will be modified accordingly.
    The order which seems to have been justified by the case will not be reversed on account of its failure to specify the grounds on which it was granted, as required by Rule 31 of the General Rules of Practice.
    Appeal from an order of the City Court of the city of New York granting a new trial.
    Edgar Hirsehberg (T. Channon Press, of counsel), for appellants.
    Feltenstein & Rosenstein (Moses Feltenstein, of counsel), for respondent.
   Per Curiam.

The issues were tried before the court and a jury, and a verdict was rendered for defendants. Immediately after the rendition of the verdict the plaintiffs counsel moved “ to set aside the verdict upon the ground that on the conceded facts of the case it is contrary to the weight of evidence, contrary to the law, and in view of the fact that the defendants concede a certain amount is now due.” The court entertained the motion and subsequently granted the same, stating his reasons therefor in a written opinion, forming part of the record. From the order setting aside the verdict and granting a new" trial defendants appeal. The respondent’s counsel claims in his brief that the appellants stipulated that the only question to be raised on this appeal was, whether or not the trial court can set aside the verdict of a jury, as being against the weight of evidence, without imposing costs as a condition.” ISTo such stipulation is annexed to the record, and neither party has confined himself to that one question on this appeal. The order under consideration stated the grounds upon which the motion was made, but does not specify the grounds upon which it was granted. Bule 31 of the General Buies of Practice provides that. “ When an order grants or refuses a new trial, except on exceptions taken during the trial, it shall specify the grounds upon which the motion was made and the ground or grounds upon which it was granted.” The counsel for respondent claims that we have no right to consider the opinion of the trial court in order to ascertain whether the order was granted on "the exceptions taken at the trial or not, and he cites in support of this contention a number of decisions of the Court of Appeals which have no bearing upon the case at bar. Ir the case of Bryant v. Allen, 54 App. Div. 504, Mr. Justico Patterson used the following language, viz.: “ It has been intimated that the opinion of the trial judge cannot be referred to in order to ascertain the grounds or reasons for his disposition of the case. That such use cannot be made of an opinion of a lower court in the Court of Appeals has been frequently stated by that tribunal, but in this court a contrary rule prevails. It is required that in all cases in which opinions have been written by the court below they shall appear in the appeal book or their absence therefrom be accounted for by affidavit, and by Buie 41 of the General Buies of Practice the opinion of the court below is made in express terms a part of the record.” Upon examining the opinion of the court below in the case at bar, we find that, putting away all other considerations, he based his decision wholly upon the ground that the verdict was contrary to the evidence. Indeed, in the statement prefixed to the record, it especially appears that “ the opinion states that it (the motion) was granted on the ground that the verdict was contrary to the evidence.” It, therefore, appears that the new trial was not granted on exceptions taken during the trial, and that the order comes within the scope of Bule 31, with the requirements of which it fails to comply. So far as the question of costs is concerned, we quote from the opinion of Mr. Justice Hirschberg, in the case of Helgers v. Staten Island Midland R. R. Co., 69 App. Div. 570, 571, as follows: “The defendant’s motion for an order setting aside the verdict and granting a new trial was made upon all the grounds stated in the Code of Civil Procedure (§ 999), but the written opinion of the learned trial justice makes it quite clear that it was granted because the verdict was deemed to be against the weight of evidence and because the amount, although very small, was regarded as excessive under the proof * * *. But it was error to grant the favor of a new trial, because of a mistake upon the part of a jury, without imposing the payment of the costs of the first trial upon the party at whose instance the new trial was ordered. This is the settled rule of practice, and as was said by the former General Term in the Third Department in O’Shea v. McLear (16 N. Y. St. Repr. 482, 483), This rule seems too firmly established to he departed from, even in a case of seeming hardship.’ * * * In accordance with the authority of these cases and the long settled practice of the Supreme Court, the order must be mddified by inserting a provision requiring the defendant to pay the coáts of the trial and all disbursements in the action to date, together 'with the costs of this appeal.” The above quoted authority seems peculiarly applicable to the case at bar. Although the failure to comply with Buie 31 might ordinarily warrant a reversal (Gitelson v. Weisberg, 36 Misc. Rep. 214), still we are reluctant to resort to that measure, in view of the fact that the learned court below seems to be justified in setting aside the verdict under the testimony offered at the trial. We shall, therefore, adopt the course followed in the case of Helgers v. Staten Island Midland R. R. Co., supra, and modify the order by inserting therein, a provision imposing the payment of costs as a condition for granting the new trial and, as modified, affirm the order with costs of this appeal.

Present: Gildebsleeve, MacLean and Amend, JJ.

Order modified by inserting therein a provision imposing payment of costs as a condition for granting new trial, and, as modified, affirmed with costs of this appeal.  