¶1The plaintiff appeals from an order granting a new trial on the ground of newly discovered evidence. The justice sit- ■ ting at Special Term has carefully analyzed the affidavits presented in his opinion on the motion, and has determined that a new trial should be granted. Although I' should probably have reached the opposite conclusion, if the question were presented to me as an original motion-, I feel that it cannot be said with any certainty that the justice’s discretion has not been exercised soundly in granting a new trial. The order is, however, a distinct favor granted to the defendant, and should have been granted only upon reasonable terms.
¶2It should therefore be modified, by imposing upon him the payment of all costs and disbursements to date as a condition to the granting of the motion, and, as modified, be affirmed, without costs to either party upon this appeal. All concur.