This action was tried at the Cattaraugus circuit; - and resulted in a verdict for the defendant. Subsequently the - plaintiff, upon a case and affidavits, moved at special term for a •. new trial, “ on the grounds of surprise and newly discovered i evidence.” This motion was denied, with ten dollars costs to-' the defendant.
*170The defendant, upon such decision, entered an order denying motion for new trial, but containing no provision in respect to -costs, and also entered judgment against tbe plaintiff for $199.77 costs and disbursements, and immediately gave notice for a re-taxation of sucb costs by and before tbe clerk of Cattaraugus county.
Tbe plaintiff, by bis attorney, appeared before tbe clerk, and objected to tbe taxation of tbe item of sixty dollars costs of motion for new trial at special term on case, and to tbe item of ten dollars for making amendments to case. "Whereupon the - clerk disallowed said item, as well as tbe item of $3.40 witness fees, which last item it is now conceded was properly disallowed.
Tbe defendant now insists tbat tbe item for costs of motion, and making amendments to case on tbe motion for new trial, were improperly disallowed by tbe clerk. Tbat tbe defendant was entitled to tax and recover these costs as a matter of right under section 3251 of tbe Code of Civil Procedure, as and for costs, “upon a motion for a new trial upon a case.”
It may be conceded tbat if tbe plaintiff’s motion for a new trial is to be regarded as a motion for a new trial on a case, tbat tbe defendant is correct in bis contention, and tbe clerk should^ be reversed (Guckenheimer agt. Angevine, 16 Sun, 453; Wilcox agt. Daggett, 15 Week. Dig., 208; Selover agt. Culver, 37 How., 176; Still agt. Rowley, 37 id., 179).
But I am of tbe opinion tbat a motion for a new trial, upon tbe grounds of surprise and newly discovered evidence, is not a motion on a case within the meaning of tbat term, as employed in section 3251 of tbe Code.
It is doubtless tbe proper.practice, on sucb a motion, to settle a cáse (7 Wend., 331); but tbe whole office of tbe case, on sucb a motion, is to enable tbe court. by an inspection of tbe same, to ascertain whether tbe alleged newly discovered evidence, as disclosed by the affidavits, is cumulative. Tbe motion is made upon tbe affidavits, no recourse being bad to tbe case, except for tbe purpose indicated, whilst a motion for a new trial on a *171•case, by tbe very terms employed, imports a motion based wholly •upon tbe record of tbe proceedings on tbe trial, and for some error, in wbicb a new trial is sought
Again, if tbe cláim of tbe defendant should be sustained, it would follow tbat a party succeeding upon a motion for a new 'trial, on tbe ground of newly discovered evidence, would be entitled to tax against bis adversary tbe costs of such motion .sixty dollars, and for mating case twenty dollars. This, I do not understand, to be allowable, Tbe granting of sucb a motion is regarded as a favor to tbe party, and tbe rule is, to require sucb party to pay tbe costs of tbe former trial as a condition (Comstock agt. Dye, 13 Hun, 113; Simmons agt. Fay, 1 E. D. Smith, 107; Bonynge agt. Waterbury, 12 Hun, 534-537; May agt. Strauss, 8 Abb. N. C., 274).
Tbe conclusion I have reached, seems to be in accordance 'with tbe practice adopted by tbe court in disposing of motions •of this character, as a reference to tbe following cases, among others, will show tbat tbe universal rule has been to deny, with ten dollars motion, costs (8 Abb., 313; 7 Robt. [Supr. Ct.], 14; 66 How., 8; 14 Abb. N. C., 465).
It clearly appears from tbe opinion of tbe court at special term, upon wbicb this motion was denied, tbat tbe only question there considered was tbe propriety of granting a new trial ■upon tbe grounds of newly discovered evidence, and tbe motion, therefore presents only tbe question here discussed.
My attention has been called to tbe case of Warner agt. The Western Transportation Co. (5 Robt. [Supr. Cf.], 490), which holds in accordance witb tbe views of tbe defendant.
Tbe question does not seem to have received much consideration in tbat case, and, as it does not seem to have been followed in tbat court (7 Robt., 14), I am constrained to follow tbe greater •current of authority, wbicb is not in accord witb tbat case.
Tbe defendant insists tbat tbe conclusion bere reached is erroneous, for tbe reason tbat it deprives him of ten dollars costs allowed by section 3251, for making and serving amendments to case. I am of tbe opinion that, for tbe purpose of a *172motion for a new trial for newly discovered evidence, the service performed and serving amendments is to be treated as part of the preparation for opposing the motion, for, as we have seen, if the defendant is entitled to tax this item against the plaintiff, on the denial of the motion the same construction would permit the plaintiff, had he succeeded in his motion, to tax twenty dollars costs against the defendant for making and serving a case.
For the reasons already stated, this cannot be done. In case of an appeal from the judgment and order denying motion for a new trial, the successful party would be entitled to tax the costs in controversy here, but not otherwise.
It follows, that the decision of the clerk should be affirmed. But as the question presented does not seem to have been expressly decided in this court, Without costs of this motion.
Motion denied without costs.