(Supreme Court, Appellate Division, First Department.
November 11, 1910.)
•New Trial (§ 161*)—Conditions—Payment of Costs.
Where a party is entitled to a new trial as an absolute right, the court cannot require payment of costs as a condition.
[Ed. Note.—For other cases, see New Trial, Cent. Dig. §§ 321-323; Dec. Dig. § 161.*]
Appeal from Special Term, New York County.
Action by William S. Andrews against Daniel Leroy Dresser. From so much of an order of the Special Term as imposed on plaintiff the payment of costs as a condition of a new trial, he appeals.
Reversed.
Argued before INGRAHAM, P. J., and LAUGHLIN, CLARICE, SCOTT, and MILLER, JJ.
W. W. Cantwell, for appellant.
C. W. Gould, for respondent.
It seems to be assúmed on this appeal that the plaintiff was entitled to a new trial as an absolute right. Under such circumstances, it was improper to impose upon the plaintiff the payment of costs as a condition of the new trial.
The order appealed from must be reversed, with $10 costs and disbursements of appeal, and the order granting a new trial amended, by striking therefrom all provisions relating to the payment of costs by the plaintiff.
125 N.Y.S. 731
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