This action came on for trial at Trial Term (with a jury), and at the close of the testimony, upon the suggestion of the court that no' question of fact was presented, the jury was discharged and the court took the case under advisement. Subsequently the learned judge wrote an opinion favorable to the plaintiff’s contention but, before any further step was taken, it was called to the court’s attention that the conclusion reached was based upon a consideration of the facts in the case, and the resolving of conflicting inferences therefrom, and thereupon a motion made by the defendant? for a *199new trial was granted. From the order thus entered the plaintiff appeals.
It appears that pursuant to the order a new trial was had, and thereupon the complaint was dismissed, and that it was not until then that this appeal was taken from the order granting such new trial. Without, however) passing upon the question of how far such conduct may have affected the plaintiff’s right to appeal, we think, in view of the proceedings upon the first trial, that the learned judge was right in granting the defendants’ motion because there had clearly been a mistrial. No further steps having been taken towards the entry of the judgment, and the learned judge having proceeded no further than to write an opinion, it was entirely competent for the court, upon reaching the conclusion that there was a mistrial, to. order the case back on the calendar at a Trial Term to be retried.
It follows, accordingly, that the order appealed from should be affirmed, with costs.
Van Brunt, P. J., Ingraham, McLaughlin and Hatch, JJ., concurred.
Order affirmed, with costs.