
    Patrick J. Duffy, Plaintiff, v. City of New York, Defendant.
    (Supreme Court, New York Trial Term,
    June, 1907.)
    New trial — Proceedings to.procure new trial — Conditions on granting or refusing new trial — Payment of costs as condition to granting new trial — When granted for error of jury.
    Costs should not be imposed upon a party to whom a new trial is granted for error of the jury.
    Motion to resettle an order to set aside a verdict.
    Kellogg & Rose, for plaintiff.
    William B. Ellison, Corporation Counsel, for defendant.
   Dayton, J.

The order setting aside the verdict in plaintiff’s favor for six cents was proposed by the defendant. The city now moves to amend, resettle and otherwise correct said order, so as to provide that a new trial be conditioned upon plaintiff’s payment of costs and disbursements. Plaintiff claimed $14,000 damages, caused by defendant’s alleged breach of contract. The case was elaborately tried and as submitted to the jury the verdict should have been for the defendant or for the plaintiff in a substantial sum. I am referred to the following authorities for and in opposition to the motion: Lough v. Romaine, 36 N. Y. Super. Ct. 332, 1873, held that costs should not be imposed as a condition for granting new trial. O’Shea v. McLear, 16 N. Y. St. Repr. 482, held that costs should be imposed as a condition of a new trial. “ This rule seems too firmly established to be departed from even in case of seeming hardship.” Brown v. Foster, 1 App. Div. 578, held that where a new trial is granted for an error of the jury costs should be imposed upon the party asking for it “ as a condition of granting the favor.” People v. Glasgow, 30 App. Div. 94, in a review of many authorities, held: “ There is no doubt that if a new trial is granted upon the ground solely that the verdict is against the weight of evidence, the terms to be imposed in the matter of costs are in the discretion of the court. That being so, it would, I think, logically follow that each case must depend upon its own circumstances and that no fixed rule could properly be adopted to apply alike to each case. The causes that produce such verdicts are varied, and it sometimes happens that the party obtaining the verdict is not without blame and should not be rewarded with costs when it is set aside.” Helgers v. Staten Island Midland R. R. Co., 9 App. Div. 570, held that costs must be paid as a condition of a new trial. “ In accordance with the authority of these cases and the long-settled practice of the Supreme Court, the order must be modified by inserting a provision requiring the defendant to pay the costs of the trial and all disbursements of the action to date, together with the .costs of this appeal.” Lashaway v. Young, 76 App. Div. 177, sustaining an order setting aside a verdict for $200, held We cannot say, under the circumstances of the case, that the trial judge, in refusing to charge the defendants with costs, has violated the judicial discretion which the law has given him.” Cohen v. Krulewitch, 77 App. Div. 128, “ where a motion is made to set aside a verdict upon the ground that the plaintiff has failed to prove his case, there is no rule that requires that costs should be imposed as a condition for granting a new trial. In such a case a new trial is not granted as a matter of discretion, but as a matter of right, and we do not think the court would then be justified in imposing costs as a condition for granting a new trial.” In Waltz v. Utica & M. V. R. R. Co., 116 App. Div. 563, on plaintiff’s motion a verdict in her .favor was set aside, on the ground that the damages awarded were insufficient. The learned presiding justice said: “ We appreciate that the practice is not uniform in the different departments of the State, but after a careful examination of the adjudicated cases and consideration of the reasons urged in support of the appellant’s contention, we are constrained to adhere to the rule adopted in this department, that in setting aside a verdict and granting a new trial under section 999 of the Code of Civil Procedure ‘ because the verdict is for excessive or insufficient damages,’ the trial court is not required as matter of law to award costs absolutely against the complaining party, but that the question as to the payment of costs in such case is within the discretion of the trial court, subject, of course, to review by this court, and that, where it does not appear that the erroneous verdict resulted from the fault or mistake of the aggrieved party, the discretion of the trial court, exercised as in this case at bar, will not be disturbed.”

The granting of a new trial for error of a jury would seem to be a matter of right, not of favor. If a judgment is reversed on appeal, costs usually go to the appellant, who bears an analogy to a party to whom a new trial is granted. It is difficult to logically conclude that a party to an action concerning whom an anomalous verdict has been rendered, should be penalized as a condition of redressing a wrong. Motion to amend, resettle and otherwise correct the order entered herein denied, except that at the end of said order there be added the words, “ without costs.”

Ordered accordingly.  