N. Y. Life Insurance and Trust Co. agt. Rand and others,..

New York Life Ins. Co. agt. Rand and others,..

Northrop and Wife agt. Anderson and others,

Niles agt. Lindsley,..

Osborne agt. Betts and Smith,.

Otis and others agt. Spencer and another,..

Otis agt. Ross and others,.

35

352

351

131

31

171

193

199

Owens agt. Ackerson,....

Parsons and Wales agt. Nash & Nash, Executors, &c.,

454

Penfield and others agt. White,....

87

People ex rel. Gale agt. Trustees of School Dist. in Busti and Harmony,.. 125

People ex rel. Atkins and Powell agt. Van Leuven & Snyder, Trust's, &c., 358

People agt. Albertson,.

363

People agt. Hendrickson,

404

President, &c., of the Bank of Whitehall agt. Weed and Smith,..

Cases Reported.

Rogers agt. Rathbun,

466

Roosa agt. The Saugerties and Woodstock Turnpike Co.,..

237

Roy agt. Thompson..

253

Sales agt. Woodin,

349

Saratoga and Washington R. R. Co. agt. McCoy and others, Trustees,.... 526

Sawyer and Briggs, overseers, &c., agt. Schoonmaker,

198

PRACTICE REPORTS.

SUPREME COURT.

ELLSWORTH agt. GOODING.

The costs ordered to be paid by a party obtaining a new trial are, the costs of the former trial and of the motion, or the costs of such proceedings as ate vacated for the purpose of a new trial.

Where an extra allowance has been made on the trial of the cause, it is to be treated as a part of the costs to which the prevailing party is entitled, and is to be paid as a part of the costs ordered on granting a new trial.

A motion for a new trial on a case or bill of exceptions, is not a non enumerated motion, therefore § 315 of the Code does not apply as to costs ($10) of a motion. It is a regular proceeding in the cause, and the prevailing party should be entitled to a trial fee, under § 307, sub. 3, to the plainitiff $15, to the defendant $12; as often as the cause is brought to a hearing on the merits. On an appeal from the special to the general term from an order granting or refusing a new trial, under the Code of 1851, $15 should be allowed before argument, and $30 upon the argument.

At Chambers, August 1852. Costs. This action was brought to recover land, and was tried at the Rensselaer circuit in December 1849. The verdict was for the plaintiff. The judge who held the circuit made an extra allowance of costs to the plaintiff of one hundred dollars. The defendant made a case, upon which a motion for a new trial was made at a special term. The motion was granted on the ground that the verdict was against the weight of evidence. The order granting a new trial directed that the costs should abide the event of the suit. Upon an appeal from this order to the general term, it was so modified as to grant a new trial, "on payment by the defendant of all the costs subsequent to the notice of trial in this action." Various proceedings were had between the counsel for the parties, for the VOL VIII.

1

Ellsworth agt. Gooding.

purpose of adjusting the amount of costs to be paid by the plaintiff in pursuance of this order. The plaintiff claimed the costs of several circuits preceding that at which the cause was tried; also the extra allowance of $100; also the costs of the hearing at the special term and the appeal to the general term from the order granting a new trial. Upon affidavits showing these facts, the defendant's attorneys gave notice of a motion to be made at the next general term to modify the order granting a new trial, so as to determine the amount of costs which the defendant is required to pay, or to designate some officer to tax or adjust such costs. Application having been made to Mr. Justice HARRIS for an order staying proceedings until the motion could be made, it was agreed by the counsel for the parties that the motion should be heard and decided by him, with the same effect as if the motion had been made at general term.

J. HOLMES, for Plaintiff.

S. STEVENS, for Defendant.

HARRIS, Justice. The granting of a new trial, on the ground that the verdict is against evidence, or because the damages are excessive, has always been regarded as a matter of favor rather than of right. The trial having been fairly conducted, and there being no error of law, or misconduct of the jury, it is very much in the discretion of the court whether the case shall be submitted to another jury. Hence it is, that the practice has obtained, when a new trial is awarded under such circumstances, of imposing, as a condition, the payment of costs (Jackson vs. Thurston, 3 Cow. 342). In such cases, the costs which the court has required the party obtaining the new trial to pay, as a condition of the favor granted, are the costs of the former trial and of the motion. There is no reason why the costs of the circuit, preceding that at which the trial was had, should be paid, any more than the other costs in the cause. The true rule is, to charge the party obtaining the favor of a new trial with the costs of such proceedings as are vacated for that purpose.

The next question is, whether the extra allowance should be included as a part of the costs which the defendant is required to pay. The Code allows to the plaintiff recovering costs, "for all