
    Second Department,
    March, 1907.
    Daniel Deegan, Appellant, Respondent, v. The Gutta-Percha and Rubber Manufacturing Company, Respondent, Appellant.
    Cross-appeals from an order of the Supreme Court, entered in the office of the clerk of Kings county on the 3d day of January, 1906.
   Jenks, J.:

We think that the. order setting aside the verdict should be affirmed. We do not, however, wish to be understood as putting our affirmance upon the proposition that the plaintiffs theory is necessarily so counter to a physical and scientific fact as to be incredible as matter of law within the principle announced in Fealey v. Bull (163 N. Y. 397, 402); Matter of Harriot (145 id. 540). We express this limitation in view of an expression of the learned trial judge in his opinion, although it is clear enough that he intended to rest his action upon the question of the weight of evidence, inasmuch as he granted a new trial. The learned trial court could have directed a verdict for the defendant in view of its reservation of the motion of the defendant, and if it had done so this disposition must have been upheld. But we are not inclined to disturb the disposition made and, therefore, we dismiss appeal from the order denying a direction of a verdict for the defendant, without costs. Woodward, Gaynor and Rich, JJ., concurred; Hooker, J., voted to reinstate the verdict. Order granting new trial'affirmed, with costs. Appeal from order denying motion for direction of a verdict dismissed, without costs.  