
    (48 Misc. Rep. 630)
    CASNER v. NEW YORK CITY RY. CO.
    "(Supreme Court, Appellate Term.
    November 29, 1905.)
    1. Appeal—Decisions Revibwable—Discbetionary Action.
    Appellate courts are generally indisposed to overrule the exercise by the trial justice of the discretionary power given him by Code Civ. Proc. § 999, to set aside a verdict as against the evidence.
    [Ed. Note.—For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 3871-3874.]
    2. New Trial—Setting Aside Verdicts—Terms.
    An order setting aside a verdict as against the weight of the evidence should be granted only upon condition that the moving party pay the costs.
    [Ed. Note.—For cases in point, see vol. 37, Cent. Dig. New Trial, § 322.]
    Appeal from Municipal Court, Borough of Manháttan, Ninth District. • •
    Action by Delia Casner against the New York City Railway Company. From an order setting aside a verdict, defendant appeals.
    Modified.
    
      Argued before SCOTT, P. J., and GILDER,SLEEVE and Mac-LEAN, JJ.
    William E. Weaver, for appellant.
    Frank tlerwig, for respondent.
   SCOTT, P. J

In this action the jury rendered a verdict for the defendant. A motion was made at the close of the trial to set aside the verdict upon all the grounds specified in section 999 of the Code of Civil Procedure, and particularly on the ground that the verdict was contrary to the evidence and the law and the facts, and against the weight of the evidence. Argument on the motion was postponed for a few days, and in the meantime judgment was entered in favor of the defendant for $30 costs. Some days afterwards the motion to set aside the verdict was granted, and an order entered setting aside the ver,dict, vacating the judgment entered thereon, and setting the cause down for retrial. The order does not state the particular ground upon which it was granted, but an examination of the record shows that it must have been because, in the opinion of the justice, the verdict was against the evidence.

The action was for an assault committed on plaintiff by one of defendant’s conductors. Three witnesses to the occurrence, including herself, were called by plaintiff. None were called by defendant. Obviously the jury disbelieved plaintiff and her witnesses, and there certainly were circumstances which invited such unbelief. The justice who presided at the trial had, however, the advantage of seeing the witnesses, and was therefore in a much better position than we are to determine whether or not the verdict should stand. Appellate courts are generally indisposed to overrule the exercise by the trial justice of his discretionary power to set aside a verdict as against the evidence, and the present record would not warrant a departure from the usual practice.

The justice granted the order, however, without' terms. The rule is that an order setting aside a verdict as against the weight of the evidence should be granted only upon condition that the moving party shall pay costs. To this rule there are few exceptions, and this case does not present one. The plaintiff was, to put it mildly, disingenuous in the preparation of her bill of particulars. She was asked to give the number of the conductor, in reply to which she- stated that she was “unable to_state under oath” the number. Strictly, perhaps, this statement was true, but in effect it was misleading, for her attorney’s managing clerk had been informed of the number only 24 hours after the alleged assault" occurred. Sb, when the attorney prepared and signed the bill of particulars, he at all events knew the conductor’s number and could have given it, instead of preparing.a misleading bill of particulars calculated, and no doubt 'designed, to prevent defendant from producing the conductor upon the trial. As,it was, the defendant was obliged to go to trial without any witnesses. Such practice is not to be commended.

The order appealed from will therefore be modified, so as to impose the payment of $30 costs upon plaintiff as a condition of setting aside the verdict and vacating the judgment, and, as modified, will be affirmed, without costs.

MacLEAN, J., concurs. GILDERSLEEVE, J., taking no part.  