¶1This action was brought to trial before the chief justice with a jury, at the last November term. The defendant,' at the close of the plaintiffs’ proofs, moved to dismiss the complaint, upon several grounds. The court declined to grant the motion, *141but (the defendant offering no proof) directed a verdict for the plaintiff, subject, however, to the opinion of the general term. After the argument of the cause at the general term, the court dismissed the complaint.
¶2At a subsequent day of the same term, upon the suggestion of the plaintiffs’ counsel, that the further proof which the court deemed necessary could readily be supplied, the court modified the former order, and directed a new trial, on condition that the plaintiff pay the defendant’s costs of the trial, and all subsequent proceedings, including the costs of the argument.