
    David H. Blair and Walter Blair, Appellants,v. Gustave M. Minzesheimer and Leo Harburger, Respondents.
    
      Practice — verdict set aside by direction of the court — verdict in prior action set aside on appeal as against the weight of evidence — when new trial granted.
    
    Appeal from a judgment, entered on the 23d day of October, 1908, upon the dismissal of the complaint upon the trial,of the action before a jury, and also from an order entered on the 21st day of October, 1908.
   ■Ingraham, J.:

This action was before tried and resulted in a verdict for the plaintiffs which, upon an appeal to this court, was reversed upon the ground that the verdict was against the evidence. (124 App. Div. 177.) Upon the new trial, and upon substantially the same testimony, the court submitted the questions of fact to the jury, who again found a verdict for the plaintiff, whereupon the defendants"moved upon the judge’s minutes to set aside the vez'dict and for the direction of a verdict in favor of the defendants. That motion was granted, the court stating, “lam doin’g this because of the decision of the Appellate Division,” and from the order setting aside that verdict and dismissing the complaint the plaintiffs appeal. They also appeal from the judgment entered'upon such dismissal of the complaint. Upon the former appeal there was no suggestion that there was not a question of fact to submit to the jury, or that the trial judge would have been justified in directing a verdict for the defendants. A majority of the court,’ considering the improbability of the contract upon which the plaintiffs’ claim was based, and the fact that the testimony as to the making of such contract was uncorroborated; decided that the weight of the evidence was so" great in the defendants’ behalf that the verdict should be set aside and a new trial ordered. The learned trial judge misapprehended the effect of this decision. There was clearly a question of fact for the j.ury. The order, so far as it directs a dismissal of the complaint, and the judgment thereon should be reversed. The question is then presented as to whether the order setting'aside the verdict upon the ground that it is against the evidence was justified. A majority of the court on the former appeal having held that a verdict for the plaintiffs was against the weight of evidence and the trial judge having set aside a verdict, the order so far as it set aside the verdict must be affirmed. The order directing a dismissal of the complaint and' the judgment entered thereon is reversed, with costs to the plaintiffs to abide the final result, and so much of the order as sets aside the verdict and directs a new trial of the action is affirmed; with costs-to the defendants- to abide the final result of the action. Patterson, P. j., McLaughlin, Laughlto and Clarke, JJ., concurred. Judgment reversed, with costs to plaintiffs to abide event, and order affirmed to the extent stated in opinion, with costs to defendants to abide the event. Settle order on notice. .  