Opinion
January Term, 1899.
George W. Schurman, for the appellant.
James W. Ridgway, for the respondent.
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. Rep. 69.) 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.
All concurred.
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.