25 A.D.2d 667 (1966)

Walter Sign Corporation, Appellant-Respondent, v. Municipal Street Sign Company, Inc., Respondent-Appellant

Appellate Division of the Supreme Court of the State of New York, Second Department.

March 14, 1966

Order, insofar as appealed from by defendant, affirmed, without costs. Order, insofar as appealed from by plaintiff, affirmed, without costs, unless, within 20 days after entry of the order hereon, plaintiff shall serve and file a written stipulation consenting to reduce the amount of the verdict from $17,000 to $14,100 and to a modification of the judgment accordingly, in which event the order, insofar as appealed from by plaintiff, is reversed, without costs, defendant's motion insofar as it was to set aside the verdict, to vacate the judgment, and to direct a new trial, is denied, and the judgment, as so modified, is reinstated.

In the event such stipulation be not timely served and filed, the action shall be set down for trial on a date to be fixed by the Justice presiding at Trial Term, Part I. In our opinion, plaintiff's evidence adequately tendered questions of fact for the jury on the underlying and critical issues of warranty (express and implied) and defendant's breach thereof. It was error for the Trial Justice to substitute his differing views on these issues for the findings of the jury thereon and to declare the verdict contrary to the weight of the evidence (4 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 4404.09, p. 44-32). The other asserted grounds — apart from warranty and damages — upon which the verdict was upset rested upon claimed infirmities in plaintiff's presentation of fact on other subsidiary items which went to the credibility of plaintiff's case. Such matters were solely for the jury's assessment. However, on the proof adduced, plaintiff failed to establish damages greater than $14,100 and the jury's verdict for $17,000 was accordingly excessive to that extent.


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