The opinion of the court was delivered by

Upon the trial of this action the court granted a motion for a non-suit, and thereafter, upon the plaintiff's motion, the judgment of non-suit was-set aside and a new trial granted. This appeal is prosecuted from said order, appellants claiming that the court erred in vacating said judgment. The respondent contends that not only was the judgment of non-suit properly set aside, but that the court should have gone further and rendered judgment in his favor, and asks that the cause be remanded, with an instruction to that effect.

The granting of a new trial is a matter addressed largely to the discretion of the lower court, and after an examination of the record we find nothing to indicate that it was improperly exercised in this instance. The various contentions of the appellants and respondent upon this appeal are based upon the pleadings in said action, and certain defects or irregularities therein are practically conceded, but it is within the province *527of the lower court to permit an amendment, and as this may be done and the cause tried on other and different pleadings, it would serve no purpose to pass upon, the questions now presented thereon. We do not think the condition of the cause was such as to entitle the plaintiff to judgment, and, if otherwise, we could grant him no relief, he not having appealed.

The judgment granting a new trial is affirmed.

Hoyt, 0. J., and Andebs, Dunbab and Gobdon, JJ., concur.