Newschloss v. Wittner

86 N.Y.S. 211

Opinion

DAVIS, J.

The plaintiff recovered judgment against the defendant for the sum of $1,134.27, including $104.79 costs. Subsequently, upon defendant’s application, the judgment was vacated, and a new trial granted, upon condition that the defendant give an undertaking to pay any judgment which may be recovered, and upon the further condition that the defendant pay to the plaintiff, within 10 days after the entry and service of the order, $104—the costs of the action as taxed in the judgment roll. Considering the recital in the first order granting the motion for a new trial, and from the opinion of the justice granting a new trial, as well as from an inspection of the evidence and testimony taken at the trial, and the affidavits used upon the application, I am .convinced that the defendant presented irresistible reasons for the granting of a new trial. Her newly discovered evidence will go far to establish the falsity of the testimony of plaintiff’s witness. In view of this aspect of the case, it would seem that to compel the defendant to pay $104 and to give an undertaking is a harsh penalty to impose. I think the order appealed from should be modified by striking out the provision as to payment of costs and the giving of an undertaking, and that the disbursements of the trial and a trial fee only should be allowed as a condition of granting the motion for a new trial, and, as so modified, it should be affirmed, without costs.

Order appealed from modified as aforesaid, and as modified affirmed, without costs on defendant’s appeal, and with costs and disbursements to defendant on plaintiff’s appeal. All • concur.