Majority
p. 670Ellen Coffey, as Administratrix, etc., of Patrick Coffey, Deceased, Appellant, v. New York City Railway Company, Respondent. First Department, February 25, 1907.
Headnote
Appeal from order — opinion below not considered.On an appeal from, an order setting aside a verdict, it is the order which' governs the appellate court and not the opinion of the court below.
Appeal by the plaintiff, Ellen Coffey, as administratrix, etc., . from an order of the Supreme Court, made at the ¡New York Trial Term and- entered ih the office of the clerk of the county of Hew York on the 2d day of April, 1906. •" ' .
- Frederick Hulse, .for the appellant.
Joseph F Daly, for the respondent. •
The order setting aside the verdict and granting a new trial, from-which the plaintiff appeals, recites that the motion was "made upon , the ground, amongst others, that the verdict was against the weight of evidence.
In a ‘ memorandum opinion, the learned trial court stated views respecting the case, -in which we do not concur. It is the order, however,, which governs our consideration of the appeal find not the opinion. Treating the motion , as made upon .the ground-that
p. 671
the verdict was against the weight of evidence, as we must, the facts disclosed by the record are such that we do not feel justified in interfering with the discretion exercised by the trial court'in making such an order.
The order granting a new trial is, therefore, affirmed, with costs.
Patterson, P. J., Ladghlin and Lambert, JJ., concurred; Ingraham, ¿L, concurred in result. -
Order affirmed, with costs. Order filed.