Opinion
November 13, 1981
Appeal from the Monroe Supreme Court, Yesawich, J.
Present — Dillon, P.J., Hancock, Jr., Doerr, Denman and Moule, JJ.
Judgment unanimously affirmed, without costs. Memorandum: In affirming, we note that in a memorandum decision denying plaintiff's motion to set aside the jury verdict of no cause of action as to defendant Bologna's estate, the Trial Judge wrote that he agreed with plaintiff's argument that "the evidence clearly demonstrated the operator of the Bologna vehicle was negligent". If that statement was intended to mean, as now urged by plaintiff, but without our concurrence, that the trial court would have granted the motion to set aside the verdict if the only issue on the motion was the question of Bologna's negligence, it must be rejected. In its charge, the court properly submitted to the jury the question of whether plaintiff's intestate, Slocum, or defendant's intestate, Bologna, was the operator of the vehicle in which both were occupants at the time of the accident. It was only upon a finding that Bologna was the operator that the jury was to resolve the question of negligence. It may not be said as to either issue that the preponderance of the evidence in plaintiff's favor was "so great that the verdict could not have been reached upon any fair interpretation of the evidence" (Boyle v. Gretch, 57 A.D.2d 1047, 1048).