Browning v. Goldman , 34 Misc. 827 ( 1901 )

Hascall, J.

The leave granted, at what appellant calls the second trial, was for defendants to have opportunity to apply to the Special Term. For this, plaintiff was given and received ten dollars term costs. The court at Trial Term did not judicially examine the issues on the facts, and those arising on the pleadings were sent to Special Term to be changed, or corrected, if proper, on motion therefor; at least that is what we gather from the meagre record submitted, and hence this was not a trial within the meaning of the authorities defining just what shall be considered such. Just how “ the judge sitting at Special Term promptly set aside the verdict,” neither the papers submitted nor counsel have explained. The taxation of but two trial fees was very evidently quite correct, and the order appealed from should be affirmed, with costs and disbursements.

Fitzsimohs, Oh. J., concurs.

Order affirmed, with costs.