Opinion
July 2, 1970
June 12, 1968, a judgment in the sum of $3,158 was entered in the Civil Court in favor of plaintiff after a jury trial. The Appellate Term unanimously affirmed such judgment and leave to appeal was granted by this court which reversed the judgment and dismissed the complaint, two Justices dissenting. The Court of Appeals ( 27 N.Y.2d 580), on leave granted by the Appellate Division ( 33 A.D.2d 896), reversed this court on the law, but remanded the case "for consideration of questions of fact, if any, raised on appeal". In our earlier opinion ( 33 A.D.2d 64) the majority indicated that if we were not dismissing the complaint a new trial would have been directed. For many of the reasons stated in such opinion and because it is concluded that the verdict upon which the judgment was entered is against the weight of the credible evidence, the judgment appealed from should be reversed and a new trial directed. Determination of the Appellate Term and the judgment of the Civil Court of the City of New York are reversed, on the law and on the facts, and a new trial directed, with costs and disbursements to abide the event.
Concur — Eager, McGivern and Steuer, JJ.; Stevens, P.J., and Tilzer, J., dissent and would affirm on the ground that there was sufficient, prima facie, to warrant a submission to the jury and its verdict should not be disturbed.