
    (61 Misc. Rep. 440.)
    JOSEPH v. NEW YORK CITY RY. et al.
    (Supreme Court, Trial Term, New York County.
    December, 1908.)
    New Tbial (§ 161)—Conditions—Imposition op Costs.
    Where the facts have been submitted to the jury, and its verdict is not in accordance therewith, a new trial may be ordered, without imposition of costs.
    [Ed. Note.—For other cases, see New Trial, Cent. Dig. § 322; Dec. Dig. § 161.*]
    Action by one Joseph against the New York City Railway and others. Verdict for plaintiff. Motion for a new trial, to be granted only on payment of costs. Denied.
    G. A. Rogers, for plaintiff.
    James L. Quackenbush (Royal H. Weller, of counsel), for defendants.
    
      
      For other cases see same topic & § nvmbeb in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
    
   GOFF, J.

The circumstance which made it necessary to set aside this verdict was the injustice done to the defendant John Kissel & Son in imposing upon it damages unwarranted by any evidence in the case.

Since both defendants were sued as joint tort-feasors, and a general verdict was returned against the two, it was impossible to set aside the" verdict as to one and not as to the other. In the granting of such a motion great latitude of discretion is allowed the trial court in this department (Robinson v. Interurban St. Ry., 113 App. Div. 46, 98 N. Y. Supp. 918) and as a general practice the granting of costs is not made a condition (Duffy v. City of New York, 55 Misc. Rep. 25, 105 N. Y. Supp. 68; Seggerman v. Met. St. Ry., 38 Misc. Rep. 374, 77 N. Y. Supp. 905). The plaintiff has failed to cite any .case in this department to the contrary. Those to which he has referred are all of the Second department, where a different practice would seem to prevail. The rule is well expressed .in- the words of Justice Ingraham, in the case of Cohen v. Krulewitch (77 App. Div. 126, 128, 78 N. Y. Supp. 1044, 1045):

“While it is proper for the court to impose costs upon granting a new trial, where there was a proper case for the submission of the question to the jury, but where for some. reason the court is satisfied that the verdict was not a fair determination of the question submitted to them, or that justice requires that the case should be submitted to another jury, this is not such a case.”

Had the original motion been granted as a matter of right, as in the case of Anderson v. Rome, W. & O. R. R., 54 N. Y. 334, no discretion as to the imposition of conditions would have been permitted the trial justice. No reason is shown why the usual practice of this department should be departed from as to either of the defendants in this case, and, as the law requires that a new trial be ordered for both, justice equally requires that it be granted without imposing conditions.

Motion denied.  