At the original trial of this action (described as an action of contract but actually one in tort for deceit) in the Municipal Court of the City of Boston, the trial judge made a finding for the plaintiff. The defendant filed a motion for a new trial which the judge denied. The Appellate Division ordered a new trial. At the second trial before another judge there was a finding for the defendant. The sole issue before us is whether the Appellate Division was in error in vacating the finding for the plaintiff in the first trial and ordering a new trial. We are satisfied from our review of the record that the Appellate Division was warranted in ordering a new trial to prevent a miscarriage of justice. See G. L. c. 231, § 108; Tuttle v. Brown, 10 Cush. 262, 264-265.

Orders of Appellate Division affirmed.