1900] Durst v. Brooklyn Heights R. Co. can consist only of new matter. If an alleged defense contain no new matter, it is obviously "insufficient," and therefore demurrable, and that is the case with this alleged "defense." It might be suggested that as the said section 494 by its terms allows a demurrer to "a defense consisting of new matter," it does not embrace this alleged defense for the reason that it contains no new matter. But the addition of the words, "containing new matter," is only tautological. They add no meaning which the word "defense" alone would not mean. If the defendant pleads an alleged defense of new matter which contains no new matter, such lack of new matter is no ground for saying that such so-called defense cannot be demurred to as a defense because it is not a defense, but the contrary. It may be true that the plaintiff could be in no way aggrieved by allowing this socalled defense to stand. But that is not the test. That would be equally true of any irrelevant, redundant or useless matter which might be set up as a defense. If such matter is not a defense, i. e., "new matter" which constitutes a defense to the cause of action, on the assumption that the complaint is true, it is demurrable. The defendant does not cite the case of Wiley v. Village of Rouse's Point, 86 Hun, 495; 67 St. Rep. 519; 33 Supp. 773, which seems to be the only decision apparently contrary to the foregoing. It does not seem to me that it has ever been generally accepted, or that it is of more than local application, if even that can be true since the recent reorganization of our supreme court. And it is not consistent with the weight of principle and authority to the contrary. There is no discussion of the point in the opinion on either scientific principle or authority, but it is merely said in one sentence that while the question was embraced in the issue raised by the general denial, and the defendant was not obliged to plead contributory negligence as a defense, it might nevertheless properly do so. Could not this with just the same propriety be said of a plea of any other matter as a defense which was not new matter and therefore not a defense in pleading at all? And the counsel for the plaintiff in that case does not seem to have presented this point to the 388 VOLUME VIII. Special Term. [Nov. court. It would appear from the stress of the opinion that his objection to the alleged defense was its hypothetical form, i. e., that "if the plaintiff fell upon the streets" it "was caused solely by the contributory (sic) negligence of the plaintiff." If the defendant's position in the present case that contributory negligence is a defense be correct, then the burden of proof in respect of it is on the defendant. Nothing is better known among us than that the burden of proof is on the defendant in respect of a defense pleaded by him, and the court has to so charge the jury. If matter be pleaded as a defense which does not stand this test, then it is not a defense and is demurrable. If it should be now held that this so-called defense is in law and practice a defense, then it follows that the trial judge would have to charge that the burden of proof was on the defendant to make it out; and if it had been interposed without the previous general denial, the trial judge would have to give the defendant the opening and the closing on the trial. It certainly is not to be said that it must be ruled on demurrer that it is a defense, and therefore not demurrable, but that on the trial of the issue of fact the trial judge would have to rule that it is not a defense, so as to avoid charging that the burden was on the defendant to make it out, or giving the defendant the opening and closing. The demurrer is sustained. 1900] Smith v. City of New York. SMITH v. CITY OF NEW YORK. [55 App. Div. 90; 100 St. Rep. 1046; 66 Supp. 1046.] Supreme Court, Appellate Division, Second Department. November 23, 1900.) NEW TRIALCOSTS-TERMS. A new trial granted for error of law is a matter of right, and not of favor, and an order therefor conditioned on payment of $50 as costs was erroneous. Appeal from trial term, Kings county. Action by Sarah A. Smith against the city of New York. From a judgment in plaintiff's favor, and from an order grant NOTE.-IMPOSITION OF TERMS AS CONDITION OF NEW TRIAL. a. When new trial a legal right. b. When new trial matter of privilege or discretion. 1. In general. 2. Verdict against the evidence. 3. Excessive damages. 4. Inadequate damages. 5. Newly discovered evidence. 6. Misconduct of jury or referee. c. Amount of costs. d. Practice-Appeal. a. When new trial a legal right. Where a new trial is granted because of error of the court, no terms an be imposed upon the party applying therefor. Anderson v. Rome, W. & O. R. Co. 54 N. Y. 334. Randall v. Albany City Nat. Bank, 1 St. Rep. 592. ing defendant a new trial conditionally, defendant appeals. Order modified and affirmed. Argued before GOODRICH, P. J., and BARTLETT, WOODWARD, HIRSCHBERG, and JENKS, JJ. William J. Carr (R. Percy Chittenden, on the brief), for appellant. Thomas F. Magner, for respondent. JENKS, J. The order granting the new trial to the defendant was made on the minutes and on the exceptions. No other ground is specified, and therefore the relief was granted on ac IMPOSITION OF TERMS AS CONDITION OF NEW TRIAL,-continued. Thus costs cannot be imposed as a condition of granting a new trial because of erroneous rulings upon the admission of evidence. Anderson v. Rome, W. & O. R. Co. 54 N. Y. 334. Randall v. Albany City Nat. Bank, 1 St. Rep. 592. An order setting aside a referee's report and granting a new trial as a legal right, cannot be limited by a condition that certain evidence shall be admitted upon the second trial. Bruce v. Davenport, 3 Keyes, 472. But when, on the trial of an action, a question was put to a witness, and it was objected to on a specific ground, which was properly overruled. and the objecting party excepted, such exception will be unavailing and will furnish no reason for relieving the party from paying costs as a condition of being granted a new trial, although the court is of the opinion that upon other grounds not suggested on the trial, the evidence was inadmissible. Harris v. Panama R. Co. 5 Bosw. 312. Where a new trial is granted for error of the referee in requiring the plaintiff to call a hostile witness, the court has power to require the plaintiff, as a condition of the granting of such relief, to amend his lis pendens covering all of defendant's realty by striking out all claim of lien on the parcels of land not affected by the action and on which it is plain no lien can be established. Beaman v. Todd, 4 St. Rep. 84. 1900] Smith v. City of New York. count of the errors of law of the learned trial justice. Rule 31. The order is made conditional on the payment of $50 by the defendant. I think that the order is improper, inasmuch as the new trial is granted, not as a matter of favor, but as a matter of right. The practice authorized by such cases as Bailey v. Park, 5 Hun, 41; O'Shea v. McLear, 16 St. Rep. 482; 1 Supp. 407; 15 Civ. Pro. 69; Lyons v. Connor, 53 App. Div. 475; 99 St. Rep. 1085; 65 Supp. 1085, and the like, does not apply. In O'Brien v. Long, 49 Hun, 80, 82; 17 St. Rep. 510; 1 Supp. 695, Barker, J., speaking of the rule of Bailey v. Park, supra, says: "In practice, this rule is not strictly applied when the error or mistake complained of has been committed by a judge." In Randall v. Albany City Nat. Bank, 1 St. Rep. 592, the court, per Bockes, J. (Landon and Parker, JJ., concurring), IMPOSITION OF TERMS AS CONDITION OF NEW TRIAL,-continued The case last cited is apparently but not strictly in conflict with the general rule, since there never had been any foundation for including in the lis pendens the parcels of land to which the action did not relate and great injustice was being done the defendant thereby. b. When new trial matter of privilege or discretion. 1. In general. Where a new trial is asked as matter of favor, or rests in the discretion of the court, a condition may be imposed upon granting it. Anderson v. Rome, W. & O. R. Co. 54 N. Y. 334. Conrad v. Williams, 6 Hill, 444. The court has power, in granting a new trial as a privilege, to require the defendant to consent that certain evidence introduced by the plaintiff on the former trial be admitted on the second, where such evidence cannot be easily presented again. Livingston v. Delafield, 3 Caines, 49a. 2. Verdict against the evidence. A new trial should not be granted on the ground that the verdict is |