3 Duer 659 | The Superior Court of New York City | 1854
He stated that the court had considered the question, and come to the conclusion that there was no justice in compelling a party who succeeded on an appeal to pay the costs of such appeal, in all cases and under all circumstances, as a condition to obtaining the relief to which he had shown himself entitled, although such relief was a new trial.
That on setting aside a report of a referee on an appeal from, a judgment entered thereon, or the verdict of a jury on an appeal from an order denying a new trial, in cases in which they are set aside as being clearly and palpably contrary to evidence, the party obtaining a new trial should not be required to pay more, in the first instance, than the costs of the former
That the peculiar character of the testimony, on which the report was based in this action, made the case a proper one for the application of that rule. That the order, granting a new trial, must be so modified as to be on condition, that the defendants paid the costs of the reference, and of subsequent proceedings to the taking of the appeal, and directing the costs of the appeal to be costs in the cause, and the right of either party to them to be dependant on the event. (Code, § 306; Saunders v. Devies and wife, 14 Eng. L. & E. 532; Skiffington v. Clark, 20 Id. 356.)