Stevens

This is an application for a writ of prohibition to restrain the respondent court from proceeding with a new trial pursuant to its order made October 29, 1935, vacating and setting aside a previous order denying the motion for a new trial and granting a new trial on the issue of damages alone.

In an action for damages for personal injuries M. Carpino recovered a judgment of $3,000 against the petitioners, and subsequently moved for a new trial, which motion was denied on October 5, 1935, the order reciting that the motion was made upon several grounds, among them the giving of an erroneous instruction and the insufficiency of the evidence to justify the verdict; that upon argument both grounds were urged; that the court would have granted a new trial on the ground of the erroneous instruction but for the filing of a waiver of a new trial except as to the question of damages, and that the evidence was sharply conflicting and the verdict amply supported. The entry of the order in the minutes by the clerk omitted all recitals of the reasons for the order denying the motion for a new trial.

On October 29, 1935, on its own motion, the court made its order vacating and setting aside…