
    Buffalo Cold Storage Company, Respondent, v. Napoleon B. Bacon, Appellant, Impleaded with Herschel M. Bacon, Defendant.
    Fourth Department,
    January 12, 1910.
    Practice — new trial — newly-discovered evidence after affirmance by Appellate Division — conditions — appeal — presumption — appointment of new referee.
    The court may grant a new trial on the grounds of newly-discovéred evidence, although the judgment on a first trial has been affirmed by the Appellate Division.
    But where, after an affirmance of judgment for the defendant, a new trial is granted on the ground of newly-discovered evidence, it should be on the condition that the plaintiff pay costs and disbursements of the first trial and of the appeal therefrom, with costs of the motion for the new trial.
    It will he assumed by the Appellate Division that it was proper for the court to appoint a new referee as required by section 1011 of the Code of Civil Procedure on granting a new trial for newly-discovered evidence if the record does not show that there was any stipulation expressly providing otherwise.
    McLennan, P. J., dissented.
    Appeal by the defendant, Napoleon B. Bacon, from an order of the Supreme Court, made at the Chautauqua Special Term and entered in the office of the clerk of the county of Orleans on the 18th day of August, 1909, granting the plaintiff’s motion for a new trial on the ground of newly-discovered evidence, and appointing a new referee to hear, try and determine the action. The ' trial already had was before a referee, who decided in favor of the defendant.
    
      Albert C. Burrows, for the appellant.
    
      Nathaniel W. Norton and Thomas A. Kirby, for the respondent.
   Williams, J.:

The order should be modified by providing that a new trial be conditional upon plaintiff’s paying the costs' and disbursements of the trial already had, including referee’s fees and disbursements in entering judgment, and the costs and disbursements upon the appeal from such judgment'to the Appellate Division, and ten dollars costs of the motion for a new trial, and as so modified affirmed, without costs of this appeal to either party.

After an examination of the record, which is . somewhat voluminous, and the memorandum by the justice before whom the motion was made and who granted the order, we are not inclined to interfere with the discretion exercised in granting a new trial,, except that no terms whatever were imposed as a condition of having such new trial. The defendant should not be required to surrender the benefits he has derived from the first trial and the affirmance on appeal-of the judgment recovered by him (123 App. Div. 916), and to submit to a new trial, without any terms whatever being imposed. It was a matter of favor to the plaintiff to have a second trial ordered and it is usual and proper that as a condition of such favor being granted, he put-the defendant back where he stood at the commencement of the first trial, so far as costs and disbursements, legally taxable, are com cerned. The court had power to grant- the new trial, even though the judgment resulting from the first trial had been affirmed in.the Appellate Division, but we are unable to understand why no terms' were imposed, and why the defendant makes no complaint in his points or Oral argument in this court as tó the failure to impose such terms. . ..

We cannot consent, however, to affirm the order in this unusual and unjust condition. The terms imposed by us in our amendment to the order are burdensome, it is true, but that is no fault of the defendant. He did not render the former trial and the appeal to the Appellate Division necessary. He did not come voluntarily into court at all, and having succeeded fully now, and being entitled to full costs and disbursements, if the plaintiff desires to go over the whole ground again, he should first.be compelled to pay the costs and disbursements already incurred. Such'is the rule applied to cases where pleadings are amended after an appeal, and such should be the rule in cases like, the present one.

The court properly appointed a new referee in the case. Section 1011 of the Code of Civil Procedure provides that in case a new trial is granted, after a trial before a referee, the court must appoint another referee unless the stipulation expressly provides otherwise. (See Brown v. Root Mfg. Co., 148 N. Y. 294 ; Brooklyn Heights R. R. Co. v. Brooklyn City R. R. Co., 105 App. Div. 88.)

There is nothing in the record to show how the referee who. tried the case was appointed, whether by consent of the parties or otherwise. If it was done by stipulation, under section 1011 of the Code, then that section controls as to the appointment of another referee upon the granting of a new trial. We' cannot presume that the order was erroneous in this respect in the absence of proof in the record that there was no stipulation or that the stipulation expressly provided another referee should not be appointed" upon the granting of a new trial.

The counsel for the appellant states in his points that the first reference was made by stipulation of the parties.

All concurred, Robson, J., in result only, except McLennan, P. J., who dissented and voted for affirmance without modification.

Order modified by imposing as a condition of the new trial that the plaintiff pay to the defendant the costs and disbursements of the trial already had, including referee’s fees and disbursements in entering judgment, and the' costs and disbursements upon the appeal from such judgment to the Appellate Division, and ten dollars costs of the motion for a new trial, and as so modified affirmed, without costs of this appeal to either party.  