Wentworth v. Candee
New York Supreme Court
At the last November general term this court reversed the judgment entered on the report of the referee in this case and ordered a new trial, with costs to abide the event, on the ground that “ the report of the referee was contrary to and against the weight of evidence in the case.” The plaintiff now moves for a modification of the rule reversing the judgment, by striking out the direction as to costs and inserting “ on payment of costs by defendant.”
1Opinion of the Court
By the court—Davis, Justice.
The counsel for the plaintiff relies, in support of his motiqn, upon the general rule, that *406where the verdict of a jury is against the weight of or contrary to evidence, it will be set aside only on payment of costs by the moving party. That this is the rule is not disputed; but it is insisted that it should not be adhered to in setting aside the report of a referee as contrary to evidence, and that the court should exercise its discretion on the subject of costs with regard to the peculiar circumstances of each case.
No case is cited, nor is any authority shown…
2Cases cited1 opinion
- Smith v. SchanckNew York Supreme Court · 1854
3Cited by1 opinion
- O'Brien v. LongNew York Supreme Court · 1888