
    Kennedy v. The Harlem Railroad Co.
    The costs of an appeal, when a new trial is granted, are in the discretion of the court. When, upon an appeal, a report of a referee, or the verdict of a jury, is set aside as clearly and palpably contrary to evidence, and the court thinks the justice of the case requires it, the party obtaining a new trial will only be required to pay, as a condition of it, the costs of the former trial, and the costs of the appeal will be ordered to be costs in the cause, and to abide the event. So in á case, in which the report is obtained upon the testimony of a single witness, whose accuracy and good faith are open to very great suspicion, and whose testimony, as the case presents it, was not entitled to credit.
    Before all the Judges,
    April Term, 1854.
    This action was referred; the referee reported in favor of the plaintiff, and from the judgment entered on the report the defendants appealed. The court, at general term, set aside the report, as unwarranted by the evidence, and granted a new trial, on condition that the defendants paid the costs of the reference and of the subsequent proceedings. The case is reported sivpm, p.-.
    The question what costs defendants should pay, as a condition to the granting of a new trial, not having been discussed on the argument of the appeal, he was permitted to be heard on that point. After hearing counsel for both parties, and taking the matter into consideration, the judgment of the court was announced.by
   Oakley, C. J.

He stated that the court had considered the question, and come to the conclusion that there was no justice in compelling a party who succeeded on an appeal to pay the costs of such appeal, in all cases and under all circumstances, as a condition to obtaining the relief to which he had shown himself entitled, although such relief was a new trial.

That on setting aside a report of a referee on an appeal from, a judgment entered thereon, or the verdict of a jury on an appeal from an order denying a new trial, in cases in which they are set aside as being clearly and palpably contrary to evidence, the party obtaining a new trial should not be required to pay more, in the first instance, than the costs of the former trial, and that the costs of the appeal should be ordered to be costs in the cause, and abide the event.

That the peculiar character of the testimony, on which the report was based in this action, made the case a proper one for the application of that rule. That the order, granting a new trial, must be so modified as to be on condition, that the defendants paid the costs of the reference, and of subsequent proceedings to the taking of the appeal, and directing the costs of the appeal to be costs in the cause, and the right of either party to them to be dependant on the event. (Code, § 306; Saunders v. Devies and wife, 14 Eng. L. & E. 532; Skiffington v. Clark, 20 Id. 356.)  