Opinion
July 7, 1966
MEMORANDUM BY THE COURT. In an action to recover the balance of the amount of a loan allegedly made by plaintiff to defendant appeal is taken from a judgment of the Supreme Court entered upon a jury verdict and from the order denying a motion to set aside the verdict and for a new trial upon the grounds specified in CPLR 4404 (subd. [a]). Plaintiff's evidence prima facie established a cause of action. Defendant's proof was to the effect that the transaction was a gift. Only questions of fact were presented which the jury decided in favor of plaintiff. We find no merit in the contention that the action was prematurely instituted. In any event, this ground was not encompassed in defendant's motion for a nonsuit. On this record we perceive no basis upon which we would be warranted in disturbing the determination of the jury. Judgment and order affirmed, with costs. Gibson, P.J., Herlihy, Taylor, Aulisi and Staley, Jr., JJ., concur.