
    Frank P. Perkins, Appellant, v. The Brainard Quarry Co., Respondent.
    (New York Common Pleas — General Term,
    February, 1895.)
    Where a motion for a new trial is made “ on the settled case herein," and affidavits and papers theretofore served, the' motion is one made “ upon a ease,” within the meaning of subdivision 3 of section 3251 of the Code, and the successful party is entitled to the same costs as upon an appeal.
    Appeal by plaintiff from an order of the Special Term, directing the clerk to retax defendant’s costs awarded to it in denying a motion for a new trial.
    The nature of the application and the facts, so far as they are material, are stated in the opinion.
    
      W. T. Jjirdsall, for appellant.
    
      Jacob Fromme, for respondent.
   Giegerich, J.

This action was brought for the recovery of broker’s commissions alleged to have been earned by plaintiff’s assignor, and resulted in a verdict in favor of the defendant. Upon the coming in of the same the plaintiff made a motion for a new trial upon the minutes, which was denied. Thereafter another application was made at Special Term, based on the settled case herein, and affidavits and papers theretofore served, upon grounds of surprise and newly-discovered evidence, which was denied, with costs. The clerk having taxed the costs at ten dollars, the defendant moved for a retaxation, contending that by section 3251 of the Code it is entitled to the same costs as upon an appeal. The court below sustained the contention and ordered a retaxation; from which order the plaintiff has appealed.

Subdivision 3 of section 3251 of the Code, among other things, provides that upon a motion for a new trial upon a-case the same sums as upon appeal shall be allowed.

The plaintiff’s motion at Special Term was based, among other things, “ on the settled case herein,” and it may, therefore, be regarded as having been made “ on a case ” within. the purview of the above-cited provisions of the Code. Consequently, when the motion was denied the defendant became entitled to the same costs as upon an appeal. Wilcox v. Daggett, 15 Wkly. Dig. 208; Atkinson v. Truesdell, 7 N. Y. Supp. 801.

For these reasons ' the order appealed from should be affirmed, with costs.

Bookstaver and Bischoff, JJ., concur.

Order affirmed, with costs.  