
    First Department,
    May, 1922.
    Henry Sherman and Others, Doing Business under the Firm Name and Style of Sherman & Shagam, Respondents, v. Franz Merz, Appellant.
    
      Trial — verdict — evidence.
    
    Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office December 10, 1921, upon the verdict of a jury, and also from an order entered December 12, 1921, denying a motion for a new trial.
    Judgment and order reversed and new trial ordered, with costs to appellant to abide the event, upon the ground that the verdict is against the weight of the evidence.
   No opinion. Present — Clarke, P. J., Smith, Page, Merrell and Greenbaum, JJ.; Greenbaum, J., dissenting.

Greenbaum, J. (dissenting):

Defendant’s failure to move for a dismissal of the complaint was in effect a concession that there was an issue of fact £pr the jury. (Seeman v. Levine, 205 N. Y. 514, 517.) The charge of the learned trial justice was clear and explicit and no exception thereto was taken by either party. There is nothing in the evidence which, in my opinion, would warrant the conclusion that the verdict was against the weight of the credible testimony. The judgment and order should be affirmed.  