
    Lena Sokoloff, Appellant, v. Rachael Leah Wapnick, Defendant.
    Supreme Court, Appellate Term, Second Department,
    February 24, 1933.
    
      Max Shulman [Louis Timberg and Rubin Mazel on the brief], for the appellant.
    
      Emile Z. Berman, for the respondent.
   Per Curiam.

It was error for the trial court to direct a verdict. The plaintiff did not join in the motion for a direction and did not consent that the trial court determine the questions of fact. She duly excepted to the granting of the motion for a direction. Plaintiff’s evidence presented questions of fact. While there were contradictions in plaintiff’s testimony, her credibility was a matter for the jury to pass upon. It is not necessary to pass upon the constitutionality of section 457-a of the Civil Practice Act, for, even if it be valid, it would have no application here, for upon the record this court cannot say that a verdict for the plaintiff would have been against the weight of the evidence. Apart from section 457-a, the court is without power to direct a verdict even if the finding in favor of the other party would be against the weight of the evidence. (McDonald v. Metropolitan St. Ry. Co., 167 N. Y. 66.)

Judgment unanimously reversed upon the law and new trial granted, with thirty dollars costs to appellant to abide the event.

All concur; present, Cropsey, Lewis and Johnston, JJ.  