
    (46 Misc. Rep. 67)
    SIMPSON v. HEFTER.
    (Supreme Court, Appellate Term.
    December 23, 1904.)
    3. New Tetal—Teems.
    Where, in an action on a note, plaintiff was granted a new trial on the- ground of surprise, ■ consisting of misleading remarks of the trial judge, it was improper to require plaintiff to pay to defendant, as part of the conditions of the order, an extra allowance of 5 per cent, on the amount claimed.
    Appeal from City Court of New York, Special Term.
    Action by Thomas Simpson, against Louis Hefter. From an order of the City Court granting plaintiff a new trial defendant appeals, and from so much of the same as fixed the conditions thereof plaintiff appeals.
    Modified.
    See 87 N. Y. Supp. 243; 88 N. Y. Supp. 282.
    ■ Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ. .
    
      Blandy, Mooney & Shipman, for plaintiff.
    Blumenthal, Moss & Feiner,.for defendant.
   MacLEAN, J.

. On a former appeal to this court from an order purporting to have been made at trial term, vacating an order denying plaintiff’s motion for a new trial, this court affirmed, and, among other things, said: “If he [the plaintiff] can establish surprise or excusable neglect, he may make a special motion for a new trial on either or both of such grounds at the Special Term of .the court below upon affidavits and a case duly made and settled.” Simpson v. Hefter, 43 Misc. Rep. 608, 611, 88 N. Y. Supp. 282. This has been done, and the Special Term of the court below has granted the motion upon the ground of surprise, and has ordered “that the plaintiff pay to the defendant, or Blumenthal, Mo'ss & Feiner, his attorneys, within ten days from the service of a copy of this order with a notice of entry thereof, the sum of $165.29, which shall include the bill of costs as heretofore taxed, for which judgment was entered herein on February 6, 1904, and shall also include the costs of the pending appeal to date; and upon the further condition that plaintiff withdraw the appeal now pending from the judgment herein.” From this order granting a new trial appeals the defendant, and likewise the plaintiff from so much thereof “as imposes certain onerous terms.”

The justice below, in his opinion upon the motion, said, “I am satisfied, from the papers presented, that the remarks of the court upon the trial hereof made in response to the inquiries of counsel for plaintiff misled the latter to his prejudice in the proper conduct and management of his caseand under the decision in Merritt v. Mayfield, 89 App. Div. 470, 472, et seq., 85 N. Y. Supp. 801, properly granted a new trial, the application for which, in this instance and under the former decision of this court, was addressed to the discretion of the court below, with power to impose terms. Anderson v. Rome, W. & O. R. R. Co., 54 N. Y. 334. The terms imposed seem quite within the decision in Helgers v. Staten Island Midland R. R. Co., 69 App. Div. 570, 75 N. Y. Supp. 34, with the exception of so much as constitutes an extra allowance of 5 per centum upon the amount claimed. The order appealed from must therefore be modified by eliminating the amount included as extra allowance, and, as thus modified, affirmed, with costs and disbursements.

Order appealed from modified by eliminating the amount included as extra allowance, and, as thus modified, affirmed, with costs and disbursements. All concur.  