Henderson v. Henderson

2 Abb. N. Cas. 102

• Court: New York City Court
• Decided: December 15, 1876
• Status: Published

Opinion

Reynolds, J.

The motion for a new trial upon the minutes was made upon exceptions taken at the trial, and upon the ground of insufficiency of the evidence to sustain the verdict. The order granting a new trial does not state the ground upon which it is made, but is conditioned upon the payment of the costs of the former trial. It is contended by the counsel for the appellant, that the order must be held to have been made on both grounds, and that, as in the case of an exception being well taken, a new trial is a matter of right, no such condition should have been imposed. There is no question about the rule of law, and the only point to be determined is whether the counsel is right in his construction of the order.

The condition as to the payment of costs was proper, if the order was made upon the second ground alone—otherwise improper. From this, we think the presumption arises, that it was so made. There is no rule requiring an order to show upon what ground it is made, nor is the practice so uniform in that direction, as to overcome the presumption that the judge in deciding the motion has proceeded in accordance with the well established practice of the courts.

We accordingly think the order should be affirmed.