Opinion
March, 1933.
Order setting aside the verdict of the jury in favor of the defendant Knapp Coal Co., Inc., reversed on the law and the facts, motion denied and verdict reinstated, with costs to the appellant. The setting aside of the verdict for said defendant was improvident. With respect to a defendant's verdict in a tort action, the rule regarding the court's supervisory control of verdicts is different from that which governs in the case of a plaintiff's verdict in a similar action. The determination of the result herein rested upon conflicting oral evidence. The version which the jury accepted was not improbable on a fair interpretation of the evidence. The setting aside of a defendant's verdict in a tort action as against the weight of evidence is not justified "unless it can be plainly seen that the preponderance in favor of the plaintiff is so great that the jury could not have reached the conclusion they did upon any fair interpretation of the evidence." ( Mieuli v. New York Queens County Railway Co., 136 App. Div. 373, 375.) That is not the situation herein and, therefore, the verdict should not have been disturbed. (See, also, Seltzer ( Eva) v. Coney Island Gravesend Ry. Co., 237 App. Div. 854 [2d Dept.], decided Dec. 23, 1932; Solkey v. Beyer, ante, p. 809 [2d Dept.], decided Feb. 27, 1933.) Lazansky, P.J., Young, Hagarty, Carswell and Scudder, JJ., concur.