Mueller v. Fosby , 289 N.Y.S. 817 ( 1936 )

Appeal by plaintiff (who had a verdict against defendant for $1,000) from an order setting aside the verdict as against the weight of the evidence. The evidence sustains the verdict of the jury. Order reversed on the law and facts, with costs, and verdict reinstated. Hill, P. J., Crapser and Bliss, JJ., concur; McNamee, J., dissents and votes to affirm on the ground that the verdict was clearly against the evidence and the weight of the evidence; that there is no proof in the record of any negligent act on the part of the defendant; and the evidence is clear, from the plaintiff’s own statements, that he was guilty of contributory negligence. Heffernan, J., concurs in the statement of McNamee, J.