
    Nathan W. Lapotin, Appellant, v. Peter Cummings, Respondent.
   This is an appeal from an order entered in Albany county setting aside a verdict in favor of the plaintiff. The case was tried in the Supreme Court before a jury and resulted in a verdict for the sum of $200. The court below directed the verdict be set aside unless the plaintiff stipulated to enter judgment for $50 in lieu of the verdict of the jury. Appellant refused to file the necessary stipulation and the verdict was accordingly set aside and this appeal was taken. Plaintiff sued the defendant, a marshal of the city of Albany, for failure to exercise his statutory duty to sell at public auction the property seized by said marshal, consisting of an oil painting levied on under an execution issued to him by the plaintiff. Upon the trial the plaintiff submitted testimony by deposition of two experts, who fixed the value of the oil painting between $300 and $350. Defendant submitted testimony of his expert that the value of the painting was much less; that the value would not exceed $50. The painting was by. a German artist. The question of the value was for the jury. The painting was exhibited to them, they heard the evidence and the evidence of the plaintiff’s experts amply supports the verdict of the jury. Order reversed, on the law and facts, with costs, and verdict reinstated. Hill, P. J., Crapser and Bliss, JJ., concur; MeNamee and Heffernan, JJ., dissent, and vote to affirm, on the ground that there was no evidence by qualified witnesses, on the part of the plaintiff, as to the market value of the painting in Albany. The only competent and substantial evidence of value was that given by the defendant’s witnesses, who were experts, familiar with the market value in Albany; that the verdict is against the weight of the credible evidence, and that the trial justice did not abuse his discretion in setting it aside.  