
    Estelle Toole, as Administratrix, etc., of Frank S. Toole, Deceased, Appellant, v. The New York Central Railroad Company, Respondent.
   Order setting aside verdict for plaintiff and granting a new trial reversed upon the law and the facts, with ten dollars costs and disbursements, motion denied, without costs, verdict reinstated and judgment directed to be entered thereon, with costs. The record herein does not disclose an overwhelming preponderance of evidence against the verdict of the jury. On the contrary, it presents a somewhat evenly balanced state of proof both for and against the propositions for which the plaintiff contended. In such a situation, Hie verdict of the jury in deciding the questions of fact should not be lightly disturbed by Hie trial justice. The trial justice in this instance seems to have acted because his personal belief differed from that arrived at by the jury. That is something distinct from the question of the weight, of evidence and is not a proper ground for setting aside the verdict. The setting aside of the verdict, therefore, was error. (Layman v. Anderson & Co., 4 App. Div. 124, 128 [1st Dept.]; Cox v. Halloran, 82 id. 639, 640; Von der Born v. Schultz, 104 id. 94, 95; Maiar v. Duffin, 134 id. 594, 595 [2d Dept.]; Dashnau v. City of Oswego, 204 id. 189, 191.) Lazansky, P. J., Young, Carswell, Seudder and Tompkins, JJ., concur.  