
    Peter J. Robischon, Respondent, v. Edward S. Moore, Appellant.
    Fourth Department,
    November 17, 1909.
    
    Appeal — reversal of judgment of Justice’s Court on question of law — court — County Court — new trial — costs.
    Section 3063 of the Code .of Civil Procedure, as amended by chapter 553 of the Laws of 1900 so as to permit the County Court upon reversing the judgment of a Justice’s Court as against the weight of evidence, to order a new trial before the justice and to award costs in its discretion, authorizes an order for a new trial and costs only where the judgment is contrary to or against the weight of the evidence. It cannot order a new trial or award costs where the judgment is reversed upon questions of law only. In such case the costs are regulated by statute.
    Appeal by the defendant, Edward S. Moore, from a judgment of the County Court of Herkimer county in favor of the plaintiff, entered in the office of the clerk of said county on the 8th day of April, 1909, pursuant to an order of said County .Court entered in said clerk’s office on the same day reversing a judgment of a justice of the peace of the town of Herkimer in favor of the plaintiff and directing a new trial before the justice who tried the action, and also (as stated in the notice of appeal) from the said order upon which the judgment was entered,
    
      Charles• D. Thomas, for the appellant.
    
      C. Ver net Smith, for the respondent.
    
      
       Temporarily withheld from publication by direction of the court.— [Rep.
    
   Spring, J.:

The respondent recovered a judgment in Justice’s Court without evidence to sustain it. The appellant appealed and did not demand a new trial in County Court. The. County Court reversed the judgment '“ upon questions of law,” with ten dollars costs, and ordered a new trial before the justice who had tried the case. The appellant contends that the County Court exceeded its authority in ordering a new trial and in its award of costs, and we concur in this contention.

Prior to the enactment of chapter 553 of the Laws of 1900, there was no power in the County Court to order a new trial in the court below except where the plaintiff had taken judgment by default and the appellate court was satisfied from the affidavits presented that' manifest injustice had been done. (Code Civ. Proc. § 3064 ; 3 Wait L. & Pr. [7th ed.] 635 et seq.)

By chapter 553 of the Laws of 1900 section 3063 was amended by permitting the appellate court upon the reversal of a judgment “where the judgment is contrary to or against the weight of the' evidence, * * * [to] order a new trial before the same justice ; * * * and in. such a case the costs of the appeal shall be in the discretion of the appellate court.” This statute was an innovation extending the authority of the County Court and yet limiting that authority to a case where the judgment is contrary to or against the weight of the evidence.. This court in a memorandum decision distinctly recognized this limitation. (Markel v. Gummer, 84 App. Div. 634. See, also, Gasson v. Atkins, 59 Misc. Rep. 145.)

By chapter 380 of the Laws of 1893, section 3063 of the Code of Civil Procédure was amended by providing that “ when the appeal is to the County Court of Kings- county said court may ” order a new trial, etc. In construing this provision in Manheim v. Seitz (21 App. Div. 16,18), it was held that on an appeal to the County Court of that county a new trial could be ordered in the Justice’s Court where there was not evidence to sustain the recovery.

By the amendment above referred to (Laws of 1900, chap. 553), the right to grant a new trial before another justice was limited to a case “ where the judgment is conti'ary to or against the weight of the evidence,” so the case of Manheim v. Seitz (supra) is not applicable to the one we are now considering.

The County Court erred in its award of costs. Its only power was to reverse or affirm the judgment. It had no discretion, over the costs. They are regulated by statute. ' (Code Civ. Proc.' § 3066, subds. 3, 4; Id. § 3067.)

The judgment and order should be modified by providing for the absolute reversal of the judgment, with costs to the appellant-in this court and the courts below.

All concurred.

Judgment modified by providing for an absolute reversal and as so modified affirmed, with costs in all courts to appellant. 
      
      See Laws of 1893, chap. 880, amdg. Code Civ. Proc. § 3063.— [Rep.
     