Bailey v. Park

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 [42] 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.