Judgment reversed and a new trial ordered, with costs to the appellant to abide the event, on the ground that the jury's verdict is against the weight of the evidence.
SHIENTAG, J. (dissenting).
The Trial Justice denied the motion to set aside the verdict of the jury, there being as he said "a question of the credibility of the witnesses". Under those circumstances, the unanimous verdict of the jury should be permitted to stand, a fair trial having been had and no error or misdirection claimed ( Beckwith v. New York Central R.R. Co., 64 Barb. 299, 309; Boyd v. Boyd, 252 N.Y. 422, 429; Watt v. Thomas, [1947] 1 All E.R. 582, 584).
I, therefore, dissent and vote to affirm.
Peck, P.J., Dore, Cohn and Van Voorhis, JJ., concur in decision; Shientag, J., dissents in opinion.
Judgment reversed and a new trial ordered, with costs to the appellant to abide the event, on the ground that the jury's verdict is against the weight of the evidence.