
    Thomas Simpson, Plaintiff-Appellant-Respondent, v. Louis Hefter, Defendant-Appellant-Respondent.
    (Supreme Court, Appellate Term,
    December, 1904.)
    Terms on granting new trial on grounds of surprise — Wo extra allowance.
    Where a new trial is granted on the grounds of surprise the terms imposed should not include an extra allowance of five per centum upon the amount claimed.
    Cross-appeals from two orders of the City Court of the city of New York, from so much as grants the plaintiff’s motion for a new trial, and from so. much as imposes onerous terms as a condition of granting the new trial.
    Blandy, Mooney & Shipman (Charles Blandy, of counsel), for appellant-plaintiff.
    Blumenthal, Moss & Feiner (Benjamin F. Feiner, of counsel), for appellant-defendant.
   MacLean, J.

On a former appeal to this court from an order, purporting to have been made at Trial Term, vacating an order denying plaintiff’s motion for a new trial, this court affirmed and, among other things, said: “If he (the plaintiff) can establish surprise or excusable neglect, he may make a special motion for a new trial, on either or both of such grounds, at the Special Term of the court below, upon affidavits and a ease duly made and settled.” Simpson v. Hefter, 43 Misc. Rep. 608, 611. This has been done, and the Special Term of the court below has granted the motion upon the ground of surprise and has ordered “ that the plaintiff pay to the defendant or Blumenthal, Morse & Feiner, his attorneys, within ten days from the service of a copy of this order with a notice of entry thereof, the sum of'$165.29 (One hundred and sixty-five 29/100 dollars), which shall include the bill of costs as heretofore taxed, for which judgment was entered herein on February 6th, 1904, and shall also include the costs of the pending appeal ,to date; and upon tlie further condition that plaintiff withdraw the appeal now pending from the judgment herein.” From this order granting a new trial, appeal the defendant, and likewise the plaintiff from so much thereof “ as imposes certain onerous terms.” The justice, below, in his opinion upon the motion, said: “ I am satisfied from the papers presented that the remarks of the court upon the trial hereof made in response to the inquiries of counsel for plaintiff misled the latter to his prejudice in the proper conduct and management of his case,” and under the decision in Merritt v. Mayfield, 89 App. Div. 470, 472, properly granted a new trial, the application for which, in this instance and under the former decision of this court, was addressed to the discretion of the court below, with power to impose terms. Anderson v. Rome, W. & O. R. R. Co., 54 N. Y. 334. The terms imposed seem quite within the decision in Helgers v. Staten Island Midland R. R. Co., 69 App. Div. 570, with the exception of so much as constitutes an extra allowance of five per cent, upon the amount claimed. The order appealed from must, therefore, be modified, by eliminating the amount included as extra allowance, and as thus modified affirmed, with costs and disbursements.

Freedman, P. J., and Gildersleeve, J., concur.

Order appealed from modified, by eliminating amount included as extra allowance, and as thus modified affirmed, with costs and disbursements.  