Opinion
January 22, 1968
Appeal by defendants Quinn from so much of a judgment of the Supreme Court, Kings County, dated November 23, 1965, as is against them. Judgment reversed insofar as appealed from, on the law and the facts, and severance and new trial, on the issue of damages only, granted as to said defendants, with costs to abide the event, unless, within 30 days after entry of the order hereon, plaintiff should stipulate to reduce from $35,000 to $15,000 the amount of the verdict in his favor and to the entry of an amended judgment accordingly, in which event the judgment, as so reduced and amended, is affirmed insofar as appealed from, without costs. In our opinion, the Trial Judge was acting within the discretion allowed him by CPLR 4404 when he refused to set aside the verdict as being against the weight of the evidence (cf. Lipshitz v. Sloan, 280 App. Div. 855; Mann v. Hunt, 283 App. Div. 140; Rega v. Farley, 13 A.D.2d 860). The credibility of the key witness, William MacGibbon, as well as the reconciliation of any contradictions or inconsistencies in his testimony, were questions of fact for the jury ( Lee v. City Brewing Corp., 279 N.Y. 380, 384). In addition, MacGibbon's verification that the photographs were fair and accurate representations of the scene of the accident immediately thereafter was sufficient authentication for their admission into evidence ( Cowley v. People, 83 N.Y. 464, 477-479; McCormick, Evidence, § 181). We are of the opinion, however, that the amount of the verdict was excessive and that it should be reduced to $15,000. Brennan, Acting P.J., Hopkins, Benjamin, Munder and Martuscello, JJ., concur.