Opinion
March 14, 1966
In an action to recover damages for breach of express and implied warranties arising out of a contract for the sale by defendant of aluminum sign blanks to plaintiff, the parties cross appeal as follows from a resettled order of the Supreme Court, Queens County, entered January 15, 1965: (1) Plaintiff appeals, as limited by its brief, from so much of said order as granted defendant's motion to set aside the jury's verdict in plaintiff's favor for $17,000, vacated a judgment entered November 16, 1964 upon such verdict in plaintiff's favor and against defendant for $23,017.10, and granted a new trial. (2) Defendant appeals from so much of said order as denied its said motion insofar as it was for dismissal of the complaint as a matter of law and for judgment in its favor. 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. Ughetta, Acting P.J., Christ, Brennan, Rabin and Hopkins. JJ., concur.