Terriberry v. Mathot , 97 N.Y.S. 20 ( 1905 )

McLaughlin, J.:

1 This appeal is from so much 'of an order granting a new trial as imposed the payment' of costs and disbursements of the action as a . condition thereof. •

The action was tried before a justice of this court and the plains tiff had a verdict for $420 with interest: When the jury came in. with its v.erd-ict the _trial justice was absent and the verdict was received by another justice of this court, who discharged the'jury apd. directed that, all motions be heard'by the trial justice. Subsequently the defendant moved before the trial justice that the trial be declared a mistrial'and that the verdict be set aside inasmuch as ' tire-same had been received by. a justice who did not preside át tile trial.- The motion wds granted and the order made was as follows: “ Ordered that said motion be and the same hereby is granted and that the said trial 'heretofore had in this action at this term be. and the same hereby is declared a mistrial, and tíre said verdict rendered as aforesaid be and’ the same hereby is vacated and set aside ón condition that defendant, pay plaintiff his costs and disbursements of the action within ten days after the taxation thereof by the clerk, upon notice, and that in default of such payment the said motion be and the same hereby is denied.”

Only so much of the order is appealed from .as directs the payment of costs and disbursements as the condition of a new trial. That part of the order which determined there had been a mistrial not having been appealed from by either party is binding upon both of them and finally settles and determines that there was a mistrial. The court having reached this conclusion, it could not impose, as a condition of a new trial, the payment of costs and disbursements. There having been a mistrial, a new trial followed as a matter of right. (Smith v. City of New York, 55 App. Div. 90.)

The correctness of the order in determining that there had been' a mistrial is not before us and we cannot review the action of the court in so determining. It may not, however, be out of place to say that if the question were before us, we should entertain a different view. (Dubuc v. Lazell, Dalley & Co., 182 N. Y. 482.)

The order, therefore, so far as appealed, from, must be reversed, with ten dollars costs and disbursements.

O’Brien, P. J., Ingraham, Clarke and Houghton, JJ., concurred.

Order, so far as appealed from,, reversed, with ten dollars costs and disbursements.