
    Rabinovitz v. Earle Gear & Machine Company, Appellant.
    December 12, 1918:
    
      Appeals — New trial■ — Discretion of court.
    
    An order granting a new trial will not be reversed unless error in fact or law clearly appears to the appellate court.
    Argued Oct. 16, 1918.
    Appeal, No. 71, Oct. T., 1918. by defendant, from order of Municipal Court, Philadelphia Co., Sept. T., 1917, No. 302, granting motion for new trial in case of Henry Rabinovitz, trading as American Metal Company v. Earle Gear & Machine Company.
    Before Orlady, P. J., Porter, Henderson, Head, Kephart, Trexler and Williams, JJ.
    Affirmed.
    Motion for new trial.
    
      Error assigned was order granting new trial.
    
      Ralph B. Evans, of Prichard, Saul, Bayard & Evans, for appellant,
    cited: First Nat. Bank v. Fidelity Title & Trust Co., 251 Pa. 536; Holt v. Pie, 120 Pa. 425; Byrne v. Elfreth, 41 Pa. Superior Ct. 572.
    
      Harry M. Miller, for appellee,
    cited: Fulginiti v. Diamond C. & C. Co,, 259 Pa. 344.
   Per Curiam,

A verdict for the defendant was rendered by a jury in the Municipal Court, and upon hearing a new trial was ordered, from which the defendant appeals.

We are not favored with an opinion from the appellate division giving its reasons for this order, but after a careful examination of the record as presented, we are not convinced that there was such an abuse of discretion in making the order as to justify another trial. A party has the right to have his case heard and determined only once on the facts and law applicable thereto, but when it has been decided by the court of first instance that he has not had such a trial the granting of a retrial will not be reversed unless reversible error in fact or law clearly appears to the appellate court: First National Bank of Birmingham v. Fidelity Title and Trust Company, 251 Pa. 536. The granting or refusal of a motion for-a new trial is so largely a matter of discretion in the court below, that we will not attempt to review its exercise, except in a clear case of abuse of that discretion: Warne v. Johnston, 48 Pa. Superior Ct. 98.

It is to be noted that the new trial was granted January 24, 1918, and in ordinary course of business would have been disposed of by a second jury before this appeal can be decided.

The order granting a new trial is affirmed.  