Opinion
November 9, 1942.
In an action to recover damages for personal injuries, defendant appeals from an order granting respondent's motion to set aside a verdict in favor of defendant and to place the cause upon the calendar for a new trial. Order reversed on the law and the facts, the motion to set aside the verdict denied, and verdict reinstated, with costs. The trial presented a dispute between the defendant and an allegedly disinterested eye witness for the respondent. The two versions of how the accident happened were in sharp conflict and were irreconcilable. The jury accepted the defendant's version, which was amply supported by evidence which the jury had the right to find was credible. The learned trial justice was without power to assume the jury's function and to decide where the truth lay. ( Lee v. City Brewing Corp., 279 N.Y. 380, 384; Scheuerman v. Knapp Coal Co., Inc., 238 App. Div. 874.) Hagarty, Johnston, Adel, Taylor and Close, JJ., concur.