
    Process Copper and Brass Company, Appellant, v. Perfect Arc Lamp and Manufacturing Company and Others, Defendants, Impleaded with Lewis Sylvester, Individually and as Director of the Perfect Arc Lamp and Manufacturing Company, Respondent.
    
      New trial—it may be ordered by a judge who has taken the ease from the jury on the erroneous theory that no questions of foot were involved therein—appeal from the order directing the new trial after it has taken place.
    
    At the close of the testimony given upon-a jury trial the jury .was discharged and the case taken under advisement by the trial judge upon his suggestion that no question of fact was presented. After the trial judge had written an opinion favorable to the plaintiff, but before any further steps had been taken, his attention was called to the fact that the conclusion reached by him was based upon a consideration of the facts and upon the resolving of conflicting inferences therefrom. The trial judge thereupon granted the defendant’s motion for a new trial.
    
      Held, that there had been a mistrial and that the action of' the trial judge was proper.
    
      Quære, as to the right to appeal from an order granting a new trial after such new trial has been had.
    Appeal by the plaintiff, the Process Copper and Brass Company, from an order of the Supreme Court, made at the Hew York Trial Term and entered in the office of the clerk of the county -of Hew York on the 7th day of January, 1904, granting the respondent’s motion for a new trial of the action. .
    
      Ralston Flemming, for the appellant.
    
      Louis Zinke, for the respondent.
   O’Brien, J.:

This action came on for trial at Trial Term (with a jury), and at the close of the testimony, upon the suggestion of the court that no' question of fact was presented, the jury was discharged and the court took the case under advisement. Subsequently the learned judge wrote an opinion favorable to the plaintiff’s contention but, before any further step was taken, it was called to the court’s attention that the conclusion reached was based upon a consideration of the facts in the case, and the resolving of conflicting inferences therefrom, and thereupon a motion made by the defendant? for a new trial was granted. From the order thus entered the plaintiff appeals.

It appears that pursuant to the order a new trial was had, and thereupon the complaint was dismissed, and that it was not until then that this appeal was taken from the order granting such new trial. Without, however) passing upon the question of how far such conduct may have affected the plaintiff’s right to appeal, we think, in view of the proceedings upon the first trial, that the learned judge was right in granting the defendants’ motion because there had clearly been a mistrial. No further steps having been taken towards the entry of the judgment, and the learned judge having proceeded no further than to write an opinion, it was entirely competent for the court, upon reaching the conclusion that there was a mistrial, to. order the case back on the calendar at a Trial Term to be retried.

It follows, accordingly, that the order appealed from should be affirmed, with costs.

Van Brunt, P. J., Ingraham, McLaughlin and Hatch, JJ., concurred.

Order affirmed, with costs.  