James K. Clarke, Appellant, v. The Acme Building Company, a Corporation Organized under the Laws of the State of New York, Respondent

James K. Clarke, Appellant, v. The Acme Building Company, a Corporation Organized under the Laws of the State of New York, Respondent. First Department, March 10, 1911. Mew trial — resettling order — terms. A trial justice may resettle an order granting a new trial so as to state the grounds upon which it was granted. Where a case on appeal from the original order granting a new trial was settled by consent and filed, and, after the plaintiff gave notice of argument, the defendant moved to resettle the order by stating the grounds upon which the new trial was granted, so as to raise the question as to whether the verdict was against the weight of evidence so that the plaintiff’s appeal from the original order became ineffectual, it having been based only on exceptions taken at trial, the following terms should be imposed in addition to ten dollars motion costs allowed the plaintiff on the resettlement: The plaintiff should be allowed to discontinue the original appeal, without costs; plaintiff should be allowed to withdraw the papers theretofore filed on said appeal and defendant should return such papers therein as may have been served on him; defendant should pay for the printing of plaintiff’s briefs on appeal from the original order and of the resettled order upon a new appeal. Under rule 31 of the General Rules of Practice it is presumed that an appeal from an order granting a new trial brings up only exceptions taken at trial where the order for a new trial does not state the grounds upon which it was made. Appeal by the plaintiff, James K. Clarke, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on 2d day of February, 1911, denying the plaintiff’s motion to vacate an order as resettled, setting aside a verdict and granting a new trial. James H. Hickey, for the appellant. W. Bernard, Vause, for the respondent. [MAJORITY — Dowling, J.:] Dowling, J.: The learned justice was not only clearly within his rights in resettling the order granting a new trial, but it was his duty to state the grounds upon which the new trial was granted in the order directing same. (General Rules of Practice, rule 31.) Nor is there any question but that in its final form the order correctly states the ground upon which he set aside the verdict, as he intimated to plaintiff’s counsel, while the jury were deliberating, he would do if it were for the plaintiff. But we think that, in view of the situation in which plaintiff was placed, through no fault of his own, the terms imposed were not adequate. The case on appeal from the original order has been settled on consent; it was served on November 21, 1910, and filed December 23, 1910. Plaintiff had noticed the appeal for argument on January 10,1911, and an adjournment was had until January eighteenth, defendant agreeing to serve its brief by January thirteenth. The notice of motion to resettle the order was given on January eleventh, and the order of resettlement was made January sixteenth. When the resettled order was once entered the plaintiff’s appeal from the original order became ineffectual, and it would be unjust to permit him to suffer any loss because of the changed conditions, due to defendant’s discovery of the infirmity of the original order as a means of presenting the question of whether or not the verdict was against the weight of evidence, the presumption under rule 31 being, where no ground is stated in the order, that it was made on the exceptions taken during the trial. It was defendant’s duty to see that the order entered on its motion was properly framed, and it unduly delayed in so doing, when its action was not taken until after an appeal had been taken and the papers thereon printed. In addition to the ten dollars motion costs allowed plaintiff on the resettlement, the following terms should, therefore, be imposed: (1) Plaintiff should be allowed to discontinue his appeal from the original order, without costs; (2) plaintiff should be allowed to withdraw the papers heretofore filed on said appeal and defendant should return such papers therein as may have been served on it; (3) defendant should pay for the printing of plaintiff’s briefs on the appeal from the original order, and of the resettled order upon a new appeal. As thus modified the order appealed from should be affirmed, without costs. Clarke, Laughlin, Scott and Hiller, JJ., concurred. Order modified as directed in opinion, and as modified affirmed, without costs. Settle order on notice.