Morgan v. Hicks

Order unanimously reversed on the law without costs, motion denied, and verdict reinstated. Memorandum: We are mindful that the Trial Judge is given considerable discretion pursuant to CPLR 4404 (a) to set aside the jury verdict because of his opportunity to observe, hear, and weigh the testimony of the witnesses. We have said, however, that a motion under CPLR 4404 (a) should not be granted " 'unless the preponderance in favor of plaintiff was so great that the finding in favor of defendant could not have been reached upon any fair interpretation of the evidence’ ” (McDowell v Di Pronio, 52 AD2d 749, 750, quoting Olsen v Chase Manhattan Bank, 10 AD2d 539, 544, affd 9 NY2d 829). We are unable to say, on this record, that the jury verdict could not have been reached upon any fair interpretation of the evidence. (Appeal from order of Supreme Court, Ontario County, Siracuse, J. — set aside verdict.) Present — Denman, J. P., Boomer, Balio, Lawton and Davis, JJ.