Opinion
November Term, 1900.
William J. Carr [ R. Percy Chittenden with him on the brief], for the appellant.
Thomas F. Magner, for the respondent.
The order granting the new trial to the defendant was made on the minutes and on the exceptions. No other ground is specified, and, therefore, the relief was granted on account of the errors of law of the learned trial justice. (Rule 31.) The order is made conditional on the payment of fifty dollars by the defendant. I think that the order is improper, inasmuch as the new trial is granted, not as a matter of favor, but as a matter of right. The practice authorized by such cases as Bailey v. Park (5 Hun, 41); O'Shea v. McLear (15 Civ. Proc. Rep. 69); Lyons v. Connor ( 53 App. Div. 475) and the like does not apply. In O'Brien v. Long (49 Hun, 80, 82) BARKER, J., speaking of the rule of Bailey v. Park ( supra), says: "In practice this rule is not strictly applied when the error or mistake complained of has been committed by a judge." In Randall v. Albany City Nat. Bank (1 N.Y. St. Repr. 592) the court, per BOCKES, J., LANDON and PARKER, JJ., concurring, struck out the motion costs allowed by the trial justice in granting a motion for a new trial on error of law. In Anderson v. Rome, W. O.R.R. Co. ( 54 N.Y. 334, 343) the court announces the principle thus: "But, when a party asks a new trial as a matter of right, because some legal error was committed on the trial, this court has no discretion to grant or withhold it, but, finding error, is bound to reverse the judgment and grant a new trial and cannot impose such a condition." It is hard to see why this rule should not apply in any court where the new trial is of right and not of favor. (3 Wait Pr. 512, 514.) In Newman v. French (45 Hun, 65, 68) the court, per HAIGHT, J., SMITH, P.J., and BRADLEY, J., concurring, say that where the motion for a new trial is made upon the minutes, motion costs only are allowable. The order should be modified so as to provide for ten dollars costs, and the costs should not be absolute, but should abide the event. ( Van Rensselaer v. Dole, 1 Johns. Cas. 279, 280, especially the note; Knapp v. Curtis, 9 Wend. 60; Robbins v. Hudson River R.R. Co., 7 Bosw. 1.)
We do not deem it necessary to state the law as a guide for the new trial, for there are many adjudications of our highest court which deal with almost every possible phase of the claims for damages due to accidents in consequence of the icy or snowy condition of streets of municipal corporations.
All concurred.
Order granting a new trial modified in accordance with opinion of JENKS, J., and, as modified, affirmed, without costs of this appeal to either party.