¶1An examination of the papers upon appeal herein discloses that the learned trial justice in the court below was correct in granting the defendant’s motion for a new trial upon the ground of newly discovered evidence. We think, however, that the payment of the taxable costs of the action up to the time of the making of such motion should have been imposed as a condition for granting the “motion. See In re Ryan, 70 Hun, 149, 24 N. Y. Supp. 277, affirmed 141 N. Y. 550, 36 N. E. 343.
¶2Order modified, by imposing payment of the taxable costs in the action as a condition for granting the motion, and, as thus modified, affirmed, without costs of this appeal to either party.