SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
October 14, 1969
FANNIE FOGEL ET AL., RESPONDENTS-APPELLANTS,
DONALD NELSON, APPELLANT-RESPONDENT, AND JOSEPH BROWN ET AL., RESPONDENTS
Concur -- Stevens, P. J., Eager, McGivern, McNally and Steuer, JJ.
Order of this court, entered July 8, 1969 [32 A.D.2d 904], recalled and vacated. Order, entered in this action on October 8, 1968, insofar as it sets aside jury verdict in favor of defendant Nelson and directs a new trial, unanimously reversed, on the law, with $50 costs and disbursements, verdict reinstated, and judgment directed for said defendant, and said order, insofar as it sets aside verdict in favor of plaintiffs Kate Jacobs, Nat Jacobs and Benjamin Kamlet against defendants Brown on the liability issue, unanimously reversed, on the law, without costs and without disbursements, verdict in favor of said plaintiffs against defendants Brown reinstated, and action remanded for trial of damage issues. The plaintiff Fogel, however, according to the statement of her counsel, has withdrawn her appeal from the order insofar as it sets aside the jury verdict against the defendants Brown. The evidence amply supports the verdict of the plaintiffs against the defendants Brown. There is also support in the evidence for the specific finding by the jury that negligence of the defendant Nelson was not a proximate cause of the vehicle accident and there was no inconsistency in the jury verdict. "It is settled that a jury verdict in favor of defendant may not be set aside unless it plainly appears that the evidence so preponderates in favor of the plaintiff that the verdict for the defendant could not have been reached on any fair interpretation of the evidence. (Areson v. Hempstead Bus Corp., 14 A.D.2d 790; Musumeci v. Pillsbury Mills, 12 A.D.2d 941, 942; Holpp v. Carafa, 8 A.D.2d 617; Scheuerman v. Knapp Coal Co., 238 App. Div. 874, 875; Meyers v. Hines, 199 App. Div. 594, 595.)" (Marton v. McCasland, 16 A.D.2d 781, 782.) The trial court, instead of setting aside the jury verdicts, should have directed judgment in accordance therewith.
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