Opinion
November 17, 1909.
Charles D. Thomas, for the appellant.
C. Vernet Smith, for the respondent.
The respondent recovered a judgment in Justice's Court without evidence to sustain it. The appellant appealed and did not demand a new trial in County Court. The County Court reversed the judgment "upon questions of law," with ten dollars costs, and ordered a new trial before the justice who had tried the case. The appellant contends that the County Court exceeded its authority in ordering a new trial and in its award of costs, and we concur in this contention.
Prior to the enactment of chapter 553 of the Laws of 1900, there was no power in the County Court to order a new trial in the court below except where the plaintiff had taken judgment by default and the appellate court was satisfied from the affidavits presented that manifest injustice had been done. (Code Civ. Proc. § 3064; 3 Wait L. Pr. [7th ed.] 635 et seq.)
By chapter 553 of the Laws of 1900 section 3063 was amended by permitting the appellate court upon the reversal of a judgment "where the judgment is contrary to or against the weight of the evidence * * * [to] order a new trial before the same justice; * * * and in such a case the costs of the appeal shall be in the discretion of the appellate court." This statute was an innovation extending the authority of the County Court and yet limiting that authority to a case where the judgment is contrary to or against the weight of the evidence. This court in a memorandum decision distinctly recognized this limitation. ( Markel v. Gummer, 84 App. Div. 634. See, also, Gasson v. Atkins, 59 Misc. Rep. 145.)
By chapter 380 of the Laws of 1893, section 3063 of the Code of Civil Procedure was amended by providing that "when the appeal is to the County Court of Kings county said court may" order a new trial, etc. In construing this provision in Manheim v. Seitz ( 21 App. Div. 16, 18), it was held that on an appeal to the County Court of that county a new trial could be ordered in the Justice's Court where there was not evidence to sustain the recovery.
By the amendment above referred to (Laws of 1900, chap. 553), the right to grant a new trial before another justice was limited to a case "where the judgment is contrary to or against the weight of the evidence," so the case of Manheim v. Seitz ( supra) is not applicable to the one we are now considering.
The County Court erred in its award of costs. Its only power was to reverse or affirm the judgment. It had no discretion over the costs. They are regulated by statute. (Code Civ. Proc. § 3066, subds. 3, 4; Id. § 3067.)
The judgment and order should be modified by providing for the absolute reversal of the judgment, with costs to the appellant in this court and the courts below.
All concurred.
Judgment modified by providing for an absolute reversal and as so modified affirmed, with costs in all courts to appellant.