(36 App. Div. 351.)
RIEGELMAN v. BRUNNINGS.
(Supreme Court, Appellate Division, Second Department.
January 3, 1899.)
1. New Trial.
Where plaintiff obtains a new trial after a verdict in his favor, the order should be conditional on plaintiff paying costs and disbursements paid by defendant in protecting his rights.
2. Costs.
Disbursements for stenographer’s minutes are costs to which defendant is entitled, where plaintiff obtains a new trial after a verdict in his favor.
Appeal from special term, Kings county.
Action by Laura M. Kiegelman against Herman Brunnings. From an order setting aside an inadequate verdict in favor of plaintiff, and granting plaintiff a" new trial, defendant appeals.
Modified and affirmed.
Argued before GOODRICH, P. J., and CULLEN, BARTLETT, HATCH, and WOODWARD, JJ.
George W. Schurman, for appellant.
James W. Ridgway, for respondent.
PER CURIAM.
We are satisfied from an examination of this case that the court was authorized to take the view of the evidence which it has, and grant the order appealed from. O'Shea v. McLear, 15 Civ. Proc. R. 69, 1 N. Y. Supp. 407. The court should, however, have imposed as a condition the payment of costs and such disbursements as the defendant in protecting his rights has been required to pay. This will include a copy of the stenographer’s minutes. The order should be modified by directing the payment of the costs and disbursements by the plaintiff, and, as modified, it should be affirmed, without costs to either party in this court.
Order modified so as to impose as a condition of the new trial the payment by respondent of the costs and disbursements of the trial had, and, as modified, affirmed, without costs of this appeal to either party.