
    (70 Hun, 149.)
    In re WYATT et al In re RYAN.
    (Supreme Court, General Term, First Department.
    June 30, 1893.)
    Reference—New Trial—Conditions.
    Where, on petition of a receiver of a firm, disputed claims are referred, and are disallowed by the referee after a regular trial, and his report is confirmed, it is a proper condition to the granting of a motion for a new trial on the ground of newly-discovered evidence, made pending an appeal from the order of confirmation, that the receiver be reimbursed for the amount he paid the referee for fees, and that the partner, who was in no way liable for the claims, be allowed costs and attorneys’ fees.
    Appeal from special term, New York county.
    Application of Thomas F. Ryan, as receiver of C. A. Wyatt & Co., for reference of disputed claims. Rawitzer & Bro., whose claims were disallowed, moved for a new trial. From the provision of an order imposing terms on the granting of the motion they appeal.
    Affirmed.
    Argued before VAN BRUNT, P. J., and FOLLETT and BARRETT, JJ.
    Horwitz & Hershfield, for appellants.
    Durnin & Hendricks, for respondent Ryan.
    Kellogg, Rose & Smith, for respondent NewhalL
   BARRETT, J.

The motion for a new trial was upon the ground of newly-discovered evidence. One would suppose from the elaborate discussion in the briefs of counsel as to the effect of the newly-discovered evidence that the learned judge at special term had denied the motion. We find, however, that the motion was granted, and that the appellants’ present complaint relates solely to the terms imposed upon them. The appellants seem to- think that their motion should have been- granted unconditionally. The propriety of the terms in detail is not discussed, and their last point is that the order should simply be modified so as to relieve them from those terms. We think the terms imposed were just and reasonable. This proceeding had all the attributes of an equitable action. There was a regular trial before a referee, to whom the matter was sent to hear and determine. After, such full trial the referee’s report was against the claimants, and that report was confirmed. The claimants then appealed from the order of confirmation, and while that appeal was pending and undetermined they made this motion. It is obvious that a new trial should not be granted under such circumstance's, except upon reasonable indemnity to the party who, without fault, is deprived of the fruits of success. Even in cases where a new trial is granted because the decision or verdict is against the weight of evidence, it is usually upon payment of the costs of the former trial. Benedict v. Johnson, 2 Lans. 97; Kennedy v. Railroad Co., 3 Duer, 659; Overing v. Russell, 28 How. 151. Here there were two parties who were before the court substantially as defendants. One was the ■special partner, Hewhall, and the other was the receiver, Ryan. They were both entitled to costs, but the court awarded no costs to the receiver. He was simply reimbursed for a single item of outlay, namely, the referee’s fees upon the former trial. That this item was somewhat large resulted from the appellants’ vigorous but unsuccessful efforts to sustain their claim against the estate in the receiver’s hands. The respondents are surely not responsible for the amount of this disbursement, and it would have, been an extraordinary exercise of discretion to set aside what was in effect a judgment, and thus favor the claimants with a new trial, without reimbursing the estate even for the disbursements of its successful defense. The court allowed the other party, Hewhall, costs of the motion and a counsel fee of $250. The sum thus awarded was entirely reasonable. In fact, it was plainly but a partial indemnity for the expense to which Mr. Hewhall had been put by the previous proceedings. Ho costs were awarded in terms, except the costs of the motion, nor were the other disbursements of the proceedings, such as stenographers’ fees, allowed to either party. It comes to this: that one party, entitled to indemnity, was allowed the moderate sum of $260, and the other party, equally entitled to indemnity, was allowed but a single disbursement. There was in this no abuse of discretion, but a reasonable exercise thereof. The learned judge treated the proceedings as analogous to an action in equity, and doubtless intended to allow Mr. Hewhall a sum which would in some measure represent the costs of the trial of such an action, with possibly a small extra allowance. The order should be affirmed, with $10 costs and the usual disbursements. All concur.  