The opinion
ANGELLOTTI, J., dissenting.
I dissent. In my opinion, the order granting defendant’s motion for a new trial upon condition that defendant pay $154 costs of trial within thirty days from the date thereof became absolute by reason of defendant's tender of the amount within that time. Compliance by the defendant with this condition, so far as it was not prevented from so complying by the acts of plaintiff, was all that was essential to render the order an absolute and unconditional order for a new trial. Its
status
was thereby finally determined, and it was thereafter, for all purposes, an order granting a new trial, and could not be converted into an order denying a new trial by reason of anything that might subsequently occur. The only right that could thereafter possibly remain in plaintiff thereunder was a right to recover the costs which he has once refused to accept. It is unnecessary here to determine how that right could be enforced, for that question is not involved herein. There is nothing inconsistent with these views in any of the cases cited. I am of the opinion that the application for a writ of mandate should be denied.