
    WALMSLEY v. PHILLIPS et al.
    (Supreme Court, Appellate Term.
    November 12, 1909.)
    New Trial (§ 161*)—Newly Discovered Evidence—Terms.
    An order granting plaintiff a new trial for newly discovered evidence should be conditioned on plaintiff’s payment of the taxable costs of the action to the time of making the motion.
    [Ed. Note.—For other cases, see New Trial, Cent. Dig. § 322; Dea Dig. § 161.*]
    Appeal from City Court of New York, Trial Term.
    Action by Thomas Walmsley, as administrator, etc., against William Phillips and another. From an order of the New York City Court, granting plaintiff a new trial for newly discovered evidence, defendants appeal.
    Affirmed.
    Argued before GILDERSLEEVE, P. J., and SEABURY and LEHMAN, JJ.
    S. M. Fischer, for appellants.
    C. N. Morgan & Son, for respondent.
   PER CURIAM.

An examination of the papers upon appeal herein discloses that the learned trial justice in the court below was correct in granting the defendant’s motion for a new trial upon the ground of newly discovered evidence. We think, however, that the payment of the taxable costs of the action up to the time of the making of such motion should have been imposed as a condition for granting the “motion. See In re Ryan, 70 Hun, 149, 24 N. Y. Supp. 277, affirmed 141 N. Y. 550, 36 N. E. 343.

Order modified, by imposing payment of the taxable costs in the action as a condition for granting the motion, and, as thus modified, affirmed, without costs of this appeal to either party.  