
    HENDERSON v. HENDERSON.
    
      City Court of Brooklyn; General Term,
    December, 1876.
    Costs.—Hew Tbial.—Evidence.
    A new trial granted because an exception is well taken cannot be conditioned on payment of costs.
    On a motion for new trial, both upon exceptions and for insufficiency of evidence, an order granting it on condition of payment of costs, without specifying the ground, will be presumed to be made on the latter ground, and therefore will be sustained.
    Appeal by defendant from part of an order.
    
      This action was brought by John V. S. Henderson against Peter S. Henderson. On the trial, testimony having been given by both parties, and various exceptions having been taken by the defendant, and overruled by the judge ; a verdict having been rendered in favor of the plaintiff ; a motion having been made by defendant to set aside the verdict and for a new trial on the minutes of the judge, upon the ground that there was not sufficient evidence to sustain the verdict, it was “ ordered, that the said verdict be, and the same hereby is, set aside and a new trial granted, upon payment of costs of the former trial within ten days from the date of the service of a copy of this order on defendant’s attorney, otherwise said verdict to stand.”
    Defendant appealed from that portion of the order imposing costs as a condition of granting the new trial, claiming that the order was granted both on the ground of the insufficiency of the evidence and upon the several exceptions taken by him.
    The respondent claimed that the motion for a new trial having been made, among other things, upon the ground that the verdict was against evidence, the judge had a right to impose costs of the previous trial as a condition of granting a new trial.
    
      S. F. Cowdrey, for appellant.
    I. The granting of a new trial solely by reason of the insufficiency of evidence, is a matter of favor, and in such case, the condition of payment of costs is proper. It is in many cases, however, said to be in. the discretion of the judge (Slocum v. Lansing, 3 Den. 259 ; Bank of Utica v. Ives, 17 Wend. 504; Goodyear v. Ogden, 4 Hill, 106 ; Jackson v. Thurston, 3 Cow. 342 ; Birkbeck v. Burrows, 2 Hall, 51; Rogers v. Brown, 4 N. Y. Sup’m. Ct. [T. & C.] 698; Overing v. Russell, 28 How. Pr. 154; North v. Sargeant, 14 Abb. Pr. 226; S. C., 33 Barb. 352; Wood v. Woodburn, 27 Id. 346; East River Bank v. Hoyt, 22 How. Pr. 480 ; Harris v. Panama R. R. Co., 5 Bosw. 318; Bailey v. Park, 5 Hun, 41).
    II. If a new trial is granted as of strict right, the payment of costs must abide the event, nor can any condition be imposed (Slocum v. Lansing, supra; Lafarge v. Kneeland, 7 Cow. 461; Williams v. Smith, 2 Caines, 253; Anderson v. Rome, &c. R. R. Co., 54 N. Y. 343 ; Green v. Burke, 23 Wend. 490; Robbins v. Hudson R. R. R. Co., 7 Bosw. 5; Jacobsohn v. Belmont, Id. 18).
    III. When a new trial is granted as of strict right, the courts exercise their discretion and grant the motion without costs, or direct the costs to abide the event, on the ground that the necessity for it has grown out of occurrences which the party cannot control (1 Grah. & Waterm. on New Trials, 60 ; Knapp v. Curtis, 9 Wend. 60, and cases cited supra).
    
    
      Henry W. Isaacson, for respondent.
    I. The fact that the judge imposed costs of the previous trial as a condition for a new trial, is sufficient evidence that his decision was based upon the ground that the verdict was against evidence (citing, besides several cases cited by appellant, Van Rensselaer v. Doyle, 1 Johns. Cas. 379).
    II. That portion of the order imposing costs is not appealable because imposed as a condition of granting a favor, and it is entirely discretionary with the judge to grant or refuse a new trial upon his minutes, and to impose terms (Code, § 264 ; Joyce v. Mayor, &c. of N. Y., 20 How. Pr. 439; Anderson v. Rome, &c. R. R. Co., supra).
    
   Reynolds, J.

The motion for a new trial upon the minutes was made upon exceptions taken at the trial, and upon the ground of insufficiency of the evidence to sustain the verdict. The order granting a new trial does not state the ground upon which it is made, but is conditioned upon the payment of the costs of the former trial. It is contended by the counsel for the appellant, that the order must be held to have been made on both grounds, and that, as in the case of an exception being well taken, a new trial is a matter of right, no such condition should have been imposed. There is no question about the rule of law, and the only point to be determined is whether the counsel is right in his construction of the order.

The condition as to the payment of costs was proper, if the order was made upon the second ground alone—otherwise improper. From this, we think the presumption arises, that it was so made. There is no rule requiring an order to show upon what ground it is made, nor is the practice so uniform in that direction, as to overcome the presumption that the judge in deciding the motion has proceeded in accordance with the well established practice of the courts.

We accordingly think the order should be affirmed.  