
    ELISHA COMSTOCK, Appellant, v. ELECTUS DYE and FRANKLIN CARPENTER, Sheriff of Saratoga County, Respondents.
    
      JHew trial on ground of nmly-diseov&red evidence — costs of former trial — must be paid by applicant for.
    
    A new trial, on the ground of newly-discovered evidence, should only be granted upon condition that the party applying therefor shall pay the costs of the former trial.
    Appeal from an order made at tbe Special Term, setting aside a judgment in favor of tbe plaintiff entered upon tbe report of a referee, and a levy made under an execution issued thereon, and directing a new trial, costs to abide tbe event.
    
      P. H. Cowen, for tbe appellant.
    
      PAmoreaux, Poke c& Whalen, for tbe respondents.
   Per Gu/riam:

On the trial of this action one Luther was called as a witness for tbe plaintiff. He testified that be was not tbe owner of tbe claim in suit, but that be bad a power of attorney to collect it, and that tbe power of attorney could not be found. Other evidence was given tending to show that tbe instrument, executed by tbe plaintiff to Luther, was not an assignment of tbe claim, but only a power of attorney. Tbe defendants were, therefore, unable to give any evidence of statements made by Luther, tending to invalidate tbe claim. Since tbe trial it has been discovered by tbe defendants that tbe instrument mentioned was an assignment of tbe claim. They moved, therefore, to set aside tbe judgment and report of tbe referee, and tbe motion was granted, tbe costs to abide tbe event.

This was substantially a motion for a new trial upon newly-discovered evidence. Tbe rule in such cases is that the motion, when granted, is on tbe terms that tbe moving party pay tbe costs of tbe former trial. In this present case tbe learned justice, who granted tbe motion, probably thought that a fraud bad been practiced by tbe plaintiff, and that for this reason the defendants should not pay tbe costs. It may be that, so far as Luther is concerned, this view is correct. But tbe plaintiff is not distinctly connected with any supposed fraud on tbe trial. And although, on tbe affidavits, it appears now that Luther is at least tbe principal owner of tbe claim, still tbe plaintiff may, on another trial, be able to contradict Luther’s ownership. We 'cannot therefore assume, beyond doubt, that Luther is tbe only person affected by this question of costs.

And there are general reasons why tbe right to a new trial on newly-discovered evidence should be granted with caution and upon terms. Parties should make every preparation'for tbe trial as if it were to be final. It is only as a favor that they can have a new trial on tbe ground that they have better evidence to produce. Under all tbe circumstances we think that this case should follow tbe ordinary rule. And tbe order must be modified so that tbe relief granted shall be on payment by tbe defendants, within twenty days of notice of this order, of the costs and disbursements of tbe former trial and of entering judgment, as already taxed.

No costs on this appeal to either party.

Present — Leabned, P. L, Booxes and Osbobn, JJ.

Order modified so as to set aside judgment and grant new trial on payment of costs of former trial and of entering judgment. No costs of this appeal.  