
    Shamrock Gas & Oil, Inc., Respondent, v. Sterling Stations, Inc., Appellant.
   Order unanimously affirmed, without costs of this appeal to either party. Memorandum: City Court set aside the jury’s verdict of no cause for action on the ground that the verdict was “ contrary to the weight of evidence and contrary to law”. The verdict was not contrary to the law as charged by the court and although the charge was erroneous the failure of either party to except thereto made the court’s charge the law of the case. (Civ. Prac. Act, § 446; Brown v. Du Frey, 1 N Y 2d 190, 196.) The jury’s verdict, however, was against the weight of the evidence and was, therefore, properly set aside. Defendant made no effort to disprove that it was indebted to plaintiff for gasoline delivered. Defendant attempted, however, to offset plaintiff’s claim by showing that plaintiff had not performed certain promises it made in connection with certain improvements. Defendant asserted its claim by way of a conclusory affirmative defense in its answer, but failed to prove any damages to defeat plaintiff’s claim. Under these circumstances justice requires the granting of a new trial. (Appeal from order of Monroe County Court, affirming an order of Rochester City Court which granted a motion by plaintiff to set aside the verdict of the jury of no cause of action, and for a new trial in a breach of contract action.) Present — Williams, P. J., Bastow, Goldman, McClusky and Henry, JJ.  