
    Charles S. Reed, Appellant, v. Belnord Realty Company, Respondent.
    Appeal,— when presumption that new trial was not granted on question of fact not applicable.
    The presumption stated, in section 1338 of the Code of Civil Procedure is not applicable where a motion was entertained and granted, by the judge who presided at the Trial Term, upon his minutes to set aside the verdict of the jury and for a new trial “ upon the exceptions and because said verdict was contrary to law, contrary to the evidence, against the weight of evidence and for excessive damages,” and the Appellate Division has affirmed the order of the trial judge.
    
      Reed v. Belnord Realty Co., 170 App. Div. 897, affirmed.
    (Argued January 31, 1918;
    decided February 12, 1918.)
    
      Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 9, 1915, which affirmed an order of the court at a Trial Term setting aside a verdict in favor of plaintiff and granting a motion for a new trial in an action brought to recover damages for personal injuries, alleged to have been sustained by the plaintiff, by his wife, and by his children by reason of gases which it was claimed came into the plaintiff's apartments through the fault or neglect of the defendant.
    
      W. H. Daly and J. A. O’Leary for appellant.
    
      E. Clyde Sherwood, Clarence S. Zipp and Amos H. Stephens for respondent.
   Per Curiam.

A motion was entertained by the judge who presided at the Trial Term upon his minutes to set aside the verdict of the jury and for a new trial “ upon the exceptions and because said verdict was contrary to law, contrary to the evidence, against the weight of evidence and for excessive damages.” The motion was granted. The Appellate Division has affirmed the order of the trial judge. The presumption stated in section 1338 of the Code of Civil Procedure is not applicable to this case. A question of fact is involved. The order must be affirmed without passing upon the questions of law discussed by counsel.

The order should be affirmed and judgment absolute directed against the appellant upon his stipulation, with costs.

Hiscock, Ch. J., Chase, Collin, Cuddeback, Hogan, McLaughlin and Crane, JJ., concur.

Order affirmed, etc.  