
    Alfred Post, Appellant, v. Andrew Kerwin, Jr., Respondent.
    Second Department,
    April 4, 1912.
    Costs — new trial — verdict contrary to evidence.
    Where a trial judge grants a new trial upon the ground that the verdict is contrary to the evidence, costs should not be imposed upon the litigant to whom the relief is afforded unless the judge determine that there has been fault or omission on the part of said litigant.
    Motion for reargument of an appeal by the plaintiff.
    
      Philip Carpenter [Frank Parker Ufford with him on the brief], for the motion.
    
      Alexander & Green, opposed.
   Jenks, P. J.:

We think that when a judge who presides at a trial by jury sets aside the verdict and grants a new trial on the ground that the verdict is against the weight of the evidence, he is not absolutely required to impose the payment' of costs to the party who secured the verdict. There are many decisions, and among them are those in this department, to the contrary. Of these at least the later appear to accept this rule as one of long-settled practice or as “ too firmly established to be departed from ” without question. It would seem, indeed, that the rule rests upon antiquity rather than on reason. And perhaps it has been recognized and followed the more readily in that it presents a question of practice. The justification for the rule, as I find it expressed, is that the litigant receives “ a favor,” thereby meaning, I take it, that the act is one of grace, not of justice. But to pronounce such act one of favor is to beg the question. The duty of the jury is to deliver its verdict according to the evidence, but if the verdict be against the evidence, then there is not a verdict as a finality in the eye of the law. Cullen, J., speaking for the court in Luhrs v. Brooklyn Heights R. R. Co. (11 App. Div. 174), says: A verdict against evidence is a verdict without evidence to support it. Where such a verdict is rendered, the case presents a question of law, and the party aggrieved has an absolute right to have it set aside.” Relief as an absolute right is not a favor. The trial judge who makes such an order does so in the exercise of a sound discretion, but this does not mean that if he is convinced of the absolute right of the litigant to the relief he may in his sound discretion withhold that relief. If the absolute right is afforded because of the error of the jury,- why should a blameless litigant be compelled to pay for it 2 It is sometimes said that if the party seek another trial after an adverse verdict he should pay for it inasmuch as he has failed to convince the triers of fact. But if their verdict is against the evidence, such failure is not due to his fault but to their error. And by such action the trial judge does not invade the province of the jury, for he but interferes to afford the submission of the facts to another jury, not in denial but in recognition of the principle that .the jury are the ultimate judges of the facts. For that principle does not intend that when a jury has rendered a verdict uperversely against the weight of evidence,” to quote the language in the Luhrs case in 13 Appellate Division, 126, it is beyond disturbance by the trial judge. If the trial judge err in-the law and set aside the verdict and grant a new trial, there is no impost on the litigant, and it seems to me illogical that there should be such an impost for error in the triers of fact, for in either event there is error in the trial. The principle is pithily expressed in Johnson v. Scribner (6 Conn. 185):A new trial ought to be granted, without payment of costs; for the court is not called on to grant a boon to the party, but correct the misdetermination of a jury.” Our conclusion accords with the later views of this court' in its other departments. (People v. Glasgow, 30 App. Div. 94; Lashaway v. Young, 76 id. 177; Waltz v. Utica & Mohawk Valley Railway Co., 116 id. 563; Rothenberg v. Brooklyn Heights R. R. Co., 135 id. 151; Smith Contracting Co. v. City of New York, No. 2, 138 id. 907.) The general rule will be that when a new trial is granted by the trial judge on the ground that the verdict is contrary to the evidence, costs should not be imposed upon the litigant to whom this relief is afforded. This rule, however, need not obtain if the trial judge determine that incident to the erroneous verdict there has been fault or omission on the part of the said litigant.

There appears no reason why the costs .should have been imposed in this case. The motion, therefore, is denied, without costs.

Thomas, Carr, Woodward and Rich, JJ., concurred.

Motion denied, without costs.  