Opinion
May, 1922.
Present — Clarke, P.J., Smith, Page, Merrell and Greenbaum, JJ.; Greenbaum, J., dissenting.
Judgment and order reversed and new trial ordered, with costs to appellant to abide the event, upon the ground that the verdict is against the weight of the evidence. No opinion.
Defendant's failure to move for a dismissal of the complaint was in effect a concession that there was an issue of fact for the jury. ( Seeman v. Levine, 205 N.Y. 514, 517.) The charge of the learned trial justice was clear and explicit and no exception thereto was taken by either party. There is nothing in the evidence which, in my opinion, would warrant the conclusion that the verdict was against the weight of the credible testimony. The judgment and order should be affirmed.