Bailey v. Park , 12 N.Y. Sup. Ct. 41 ( 1875 )

E. DaewiN SMITH, J. :

It 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.)

In 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 the verdict was against the evidence and the law as laid down by the court.

The 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.

Ordered accordingly.