
    Juan L. Osorio, Respondent, et al., Plaintiff, v Stuyvesant Oil Burner Corp., Appellant.
   — Judgment, Supreme Court, New York County, entered on November 8, 1974 in favor of plaintiff in a personal injury action and order entered January 28, 1975 by the same Justice denying defendant’s motion for a new trial unanimously affirmed. Respondent shall recover of appellant $60 costs and disbursements of these appeals. The issues of plaintiff’s contributory negligence as well as defendant’s negligence, on this record, were properly submitted to the jury as fact questions. The jury’s determination is founded upon, and not against, the weight of the credible evidence. While the charge did not incorporate the factual contentions of the parties in respect of the legal principles charged (Green v Downs, 27 NY2d 205) we find the possible error, not called to the court’s attention, harmless. Viewed in its totality the trial was fair to the defendant. The verdict is not excessive and we affirm. Defendant’s motion for a new trial was properly denied since it was not shown that the alleged newly discovered evidence could not, with due diligence, have been obtained prior to or during trial and, in any event, no showing was made that such evidence would have altered the jury’s verdict. Concur — Markewich, J. P., Kupferman, Murphy, Nunez and Yesawich, JJ.  