
    Rochester Telephone Corporation, Respondent, v Green Island Construction Corporation, Appellant.
    Argued September 3, 1980;
    decided October 7, 1980
    
      APPEARANCES OF COUNSEL
    
      George A. Schell and Samuel M. Hall for appellant.
    
      Alexander Geiger for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

At the close of plaintiff’s evidence, defendant moved to dismiss the complaint, and the court reserved decision. Following the return of the jury’s verdict for plaintiff, defendant made a second motion, to set aside the verdict as against the weight of the evidence. Thereupon the trial court granted both motions, and judgment was entered dismissing the complaint.

The Appellate Division, reversing on the law and the facts, held that the trial court was in error both in granting the motion to dismiss and in granting the motion to set aside the verdict. The propriety of the Appellate Division’s holding that it was error to have set aside the verdict as against the weight of the evidence, although appealable, is beyond the scope of our review (Gutin v Mascali & Sons, 11 NY2d 97, 99; see Cohen and Karger, Powers of the New York Court of Appeals [rev ed], § 148, p 588). Accordingly, as to this branch of the appeal there must be an automatic affirmance (Pfohl v Wipperman, 34 NY2d 597).

Whether there was sufficient evidence to take the case to the jury and thus to require a denial of the motion to dismiss, however, presents a question of law which we may review. On this branch of the appeal we agree with the Appellate Division that there was sufficient evidence to go to the jury on the issues both of foreseeability and of contributory negligence.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum; Judge Gabrielli taking no part.

Order affirmed.  