
    Jane Waltz, Respondent, v. Utica and Mohawk Valley Railway Company, Appellant.
    Fourth Department,
    December 28, 1906.
    Costs—verdict set aside for insufficient damages — when defendant not entitled to costs.
    When on plaintiff’s motion a verdict in her favor is sét aside on the ground that the damages awarded are insufficient, the trial court is not required as a matter of law to award costs against the plaintiff, and in its discretion may refuse such costs when it does not appear that the verdict resulted from the fault or mistake of the plaintiff.
    
      It seems, however, that if the insufficient verdict were caused hy the fault or neglect of the plaintiff, a new trial should he conditioned on payment of costs hy her.
    Appeal by the defendant, the Utica and Mohawk Valley Railway Company, from an order of the Supreme Court, made at the Oneida Trial Term and ■ entered in the office of the clerk of ■ the county of Oneida on the 16th day of June, 1906, granting the plaintiff’s motion to set aside the verdict of a jury theretofore rendered in her favor, on the ground that the damages were insufficient, and granting a new trial of the action.
    The action was commenced on the 21th day of July, 1905, to recover damages alleged to have been sustained solely through the negligence of the defendant.
    ’ Rone of the evidence is contained in the record, and, therefore, it must be conclusively presumed that the verdict was properly set aside.
    
      Warnick J. Kernan, for the appellant.
    
      E. D. Lee and Timothy Curtin, for the respondent.
   McLennan, P. J.:

The only question presented hy this appeal is whether or not a defendant is entitled to costs absolutely as matter of law where, upon plaintiff’s motion, a verdic.t in his favor is set aside and a new trial granted upon the ground that the amount of damages awarded by the jury is insufficient.

It has long been established by authority that such disposition as to costs when a new trial is granted under section 999 of the Code' of Civil Procedure, because of errors committed by the trial justice, is proper. 'In the case át bar, so far as appears, the insufficiency of the verdict may have resulted entirely because of errors committed \ by the trial justice, because certain elements of damages were improperly withheld from the consideration of the -jury, or for various other causes. But even if it be assumed that the inade^ quacy of the verdict resulted solely from the error, mistake or misconduct of-the jury, we are unable to see how or why the party moving for the new trial should'be punished because of an injustice done him without fault on his part. Section 999 of the Code of Civil Procedure make no such distinction. The language is: “The judge *. * * may, in his discretion, * * * set aside the verdict, * * '* and grant a new trial upon exceptions, or because the v-erdict is for excessive or insufficient damages, * *

By the language of the section the trial - justice is given precisely the same power to set aside a verdict because insufficient as because of error in the admission or rejection of evidence, which is raised by objection and exception, and we can conceive of no good reason why a different rule as to costs should be applied where the mistake which results in injury to a party is made by the jury rather than by the court.- If the trial judge can see that the jury have probably rendered an insufficient verdict because of - the fault or negléct of the party complaining, but that still justice requires that a new trial be had, then certainly it should be granted upon condition that such party pay the costs of the trial. But in the case at bar no such condition is made to appear, and we must assume that the verdict rendered was unjust to the plaintiff, and that such injustice resulted without fault or mistake on her part.

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' appellant’s contention, we are constrained to adhere to the rule adopted in this department,, that in setting-aside a verdict and granting a hew 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 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 the case at bar, will not be disturbed.

It follows that the order appealed from should be affirmed, with ten dollars costs and disbursements to the respondent to abide event.

All concurred.

Order affirmed, with ten dollars costs and disbursements.  