Opinion
December 14, 1970
In consolidated negligence actions to recover damages for personal and property injuries, (1) Alfred Russell, a defendant in both actions, appeals from so much of an order of the Supreme Court, Kings County, dated September 9, 1969, as granted motions to set aside the jury verdict in his favor and directed a new trial as to him on the issues of liability; and (2) Adrian De Visser, as plaintiff in Action No. 1, appeals from so much of the same order as granted a motion to set aside the jury verdict in his favor against defendant Seymour Mitchell. Order reversed insofar as appealed from, with costs to appellant Russell jointly against (1) Adrian De Visser as respondent in Action No. 1 and (2) respondents Mitchell in Action No. 2 and with costs to Adrian De Visser as appellant against respondent Seymour Mitchell in Action No. 1; said motions denied; and jury verdicts reinstated. In our opinion there was sufficient evidence in the record to support the jury's verdicts; and the question of credibility, on which the case turned, was for the jury, not the trial court to decide (see Pertofsky v. Drucks, 16 A.D.2d 690; Sherman v. Smith, 23 A.D.2d 642; Vaughn-Rees v. Connolly, 30 A.D.2d 785). Moreover, we do not agree with the trial court's conclusion that the setting aside of the verdicts was justified by certain alleged errors on his part in the exclusion of some evidence and the restriction of the jury's consideration of other evidence. Whether or not those rulings were erroneous (and we do not here determine that question), we believe that on this record they were not materially prejudicial to the parties against whom the jury found and they in no way affected the jury's conclusion. Munder, Acting P.J., Martuscello, Kleinfeld, Brennan and Benjamin, JJ., concur.