Per Curiam.
While the court in the exercise of discretion might set aside the verdict as contrary to the weight of the evidence, it could not direct a verdict but should have ordered a new trial. ( Blum v. Fresh Grown Preserve Corp., 292 N.Y. 241, 245; Imbrey v. Prudential Ins. Co., 286 N.Y. 434.) Judgment upon the facts must be the judgment of the jury and not that of another tribunal. ( Loewinthal v. Le Vine, 299 N.Y. 372, 377.)
The order of the City Court, Queens County, setting aside the jury's verdict in favor of the plaintiff and dismissing the complaint on the merits, and ordering a new trial of the defendant's counterclaim, should be modified on the law and facts by directing that there be a new trial of the entire case, and as so modified, affirmed with costs to the appellant to abide the event.
PETTE and BROWN, JJ., concur. HART, J., dissents and votes to affirm.
Order modified, etc.