Bailey v. Park

Decided June 15, 1875

New York Supreme Court · decided 1875-06-15

This is an appeal from an order of a county judge, ordering a new trial in an action tried before him with a jury. The order set aside the verdict of the jury and granted a new trial, on the ground of excessive damages, and for insufficient evidence, with costs to abide the event. Plaintiff appealed from that portion of the order which reads as follows: “ Said verdict is set aside, and new trial ordered on said motion, with costs to abide the event.”

Decided 1875-06-15

E. DaewiN SMITH, J. :

¶1It seems to be the settled rule that where the court grants a new trial on the ground that the verdict is against the evidence, it can only be ordered on the payment of costs. ( Ward v. Woodburn, 27 Barb., 346; North v. Sergeant, 14 Abb., 226; S. C., 33 Barb., 352; East River Bank v. Hoyt, 22 How., 480.)

¶2In the case of Boyer v. Brown (noted in 4 N. Y. S. C., 698), the verdict was set aside by the county judge, on the ground that *42the verdict was against the evidence and the law as laid down by the court.

¶3The order should be modified by striking out the words, “ with costs to abide the event,” and the words substituted, “upon the payment of costs,” and as so amended affirmed.

Present — MulliN, P. J., Smith and Gilbert, JJ.

¶4Ordered accordingly.