Opinion
March 19, 1964
Order, entered on October 7, 1963, unanimously reversed, on the law, with $20 costs and disbursements to the appellant, the jury verdict reinstated and arbitration stayed. The questions of fact to be determined, i.e., was there a "hit and run" accident, and was the report made, as required, within 24 hours, were properly submitted to the jury. The jury resolved both issues against petitioner-respondent. On this record it was within their province so to find and, consequently, their verdict should not have been set aside. Unlike the Landau case ( Matter of MV AIC [ Landau], 20 A.D.2d 699), the evidence here was such that reasonable men could draw different inferences from the facts as related, and much depended upon the determination by the jury of the credibility of the witnesses. It might be noted that if in fact the verdict were merely contrary to the weight of the evidence, a new trial would have been required (CPLR 4404).
Concur — Botein, P.J., Valente, McNally, Stevens and Eager, JJ.