
    DEEGAN v. GUTTA PERCHA & RUBBER MFG. CO.
    (Supreme Court, Appellate Division, Second Department.
    March 8, 1907.)
    Appeal from Special Term, Kings County. Action by Daniel Deegan against the Gutta Percha & Rubber Manufacturing Company. Prom an order setting aside a verdict for plaintiff, he appeals. Affirmed. From an order refusing to direct a verdict for defendant, it appeals. Appeal dismissed. Martin T.- Mantón, for plaintiff. Frank Verrier Johnson, for defendant.
   JENKS, J.

We think that the order setting aside the verdict should he affirmed. We do not, however, wish to be understood as putting our affirmance upon the proposition that the plaintiff’s 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, 57 N. E. 631, and Matter of Harriot, 145 N. Y. 540, 40 N. E. 246. 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. All concur, except HOOKER J., who votes to reinstate the verdict.  