
    Max J. Goldberg, Plaintiff, Appellant, v. John R. Price, Doing Business under the Firm Name and Style of The Interstate Press, Defendant, Respondent.
    Supreme Court, Appellate Term, First Department,
    June 24, 1924.
    Trial —■ verdict — direction of verdict under Civil Practice Act, § 457-a, was erroneous upon evidence presented.
    A judgment upon a verdict directed for the plaintiff pursuant to section 457-a of the Civil Practice Act should be reversed and a new trial ordered, since it is evident from the testimony submitted that a question of fact was presented for the jury and that it cannot be said that a verdict for the plaintiff would be against the weight of evidence.
    Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, seventh district, dismissing the complaint.
    
      Bennett, Werner & Grenthal {Louis Mishell, of counsel), for the appellant.
    
      Edward W. Thayer {Laurence C. Stryker, of counsel), for the respondent.
   Per Curiam.-

Although the learned trial judge said that if the jury found for the plaintiff he would set the verdict aside on (the ground that it was contrary to the evidence, and then directed a verdict, presumably under the authority of section 457-a of the Civil Practice Act it is' not necessary to determine the constitutionality of that provision since it was quite evident that the testimony presented a perfectly fair question of fact for the jury and that nothing appears in the record from which it can be fairly said that a verdict in favor of the plaintiff would be against the weight of evidence.

Judgment reversed and new trial ordered, with thirty dollars costs to appellant to abide the event.

All concur; present, Bijur, Mullan and Levy, JJ.

Judgment reversed and new trial ordered.  