Coffey v. New York City Ry. Co. — 102 N.Y.S. 1132

Majority

p. 1132

COFFEY, Appellant, v. NEW YORK CITY RY. CO., Respondent.

(Supreme Court, Appellate Division, First Department.

February 25, 1907.)

Headnote

Appeal from Trial Term, New York County. Action by Ellen Coffey, as administratrix of the estate of Patrick Coffey, deceased. From an order setting aside a verdict for plaintiff and directing a new trial, plaintiff appeals. Affirmed. Frederick Hulse, for appellant. Joseph F. Daly, for 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, among 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 and not the opinion. Treating the motion as made upon the ground that 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

p. 1133

a new trial is therefore affirmed, with costs. LU concur; Ingraham, C. J., in result.