Opinion
December, 1895.
M. Shire, for plaintiff.
Sprague, Moot, Sprague Brownell, for defendant.
This action was brought upon a fire insurance policy and resulted in a verdict for the plaintiff After the verdict the defendant moved for a new trial on the minutes of the judge, which was denied. A motion was then made at the Special Term upon affidavits and "upon a case containing exceptions as settled herein" for a new trial "upon the ground of newly-discovered evidence, * * * and for such other or further relief as may be just." The plaintiff insists that he is entitled to the same costs as upon an appeal under the provisions of section 3251 of the Code of Civil Procedure, while the defendant contends that he is entitled to but ten dollars costs of the motion. Cases involving facts very similiar are cited by the respective counsel. In Perkins v. Brainard Quarry Company, 11 Misc. 337, the General Term of the Court of Common Pleas held that where a motion was made at Special Term for a new trial on the ground of newly-discovered evidence, based upon affidavits and a case made and settled, "that it must be regarded as having been made on a case within the purview of the abovecited provisions of the Code." In the case of Hosley v. Colerick, 9 Civ. Proc. Rep. 43, in the Special Term of the Supreme Court, it was held, upon a state of facts precisely the same as in Perkins v. Brainard Quarry Company, that the plaintiff was not entitled to costs under this section of the Code, Judge CHILDS in his opinion saying: "The whole office of the case on such a motion is to enable the court, by an inspection of the same, to ascertain whether the alleged newly discovered evidence as disclosed by the affidavit is cumulative." These two cases cannot very well be reconciled. Upon the same state of facts the two decisions are wholly at variance.
If the defendant's motion was for a new trial upon a case, then it is conceded that he would be entitled to costs. But the defendant claims that his motion for a new trial was simply on the ground of newly-discovered evidence, and that the case was presented to the court to determine that question alone. I think it unnecessary to decide which of the above cases expresses the true rule when the moving papers ask for a new trial on the ground of "newly-discovered evidence" alone, because in the case before me the defendant, in his moving papers, in addition to asking that a new trial be granted him on the ground of newly-discovered evidence, asks for such other or further relief as may be just; thus putting upon the plaintiff and the court the burden of an examination of the case to see whether there was not some error committed on the trial which would warrant the court in reversing the judgment and granting a new trial upon that ground. I think the cases above cited are clearly distinguishable from the facts presented on this application. Here the defendant asks for further relief, and the court would be authorized to grant it if there was any error in the record warranting it. It seems to me, therefore, that the plaintiff is entitled to costs as on a motion for a new trial on a case, and the clerk is instructed to tax the plaintiff's costs accordingly.
Ordered accordingly.