Opinion
Argued November 23, 1971
Decided January 5, 1972
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, RICHARD D. SIMONS, J.
Donald L. Schoenwald for appellant.
Paul L. Pileckas for respondents.
Appeal dismissed, without costs, on the ground that no appeal lies as of right under CPLR 5601 (subd. [a], par. [i]), since neither of the dissents in the Appellate Division is on a stated question of law which would be reviewable in this court. Both dissents rest only on questions of fact or discretion not reviewable by this court, namely, whether the jury's verdict in plaintiffs' favor was against the weight of the evidence and whether the Appellate Division should have exercised its discretionary power to order a new trial in the interests of justice. The claimed error in the trial court's charge, to which reference is made in one of the dissents, does not present any reviewable question of law since no objection was taken thereto at the trial (CPLR 4017, 5501, subd. [a], par. 3; see Miles v. R M Appliance Sales, 26 N.Y.2d 451, 454).