Ruthizer v. William Bass Dress Corp. , 264 A.D. 372 ( 1942 )

Per Curiam.

This action is one for damages for breach of contract of employment. The particular issue litigated was whether the discharge of plaintiff was justified. The claim of defendant was, in effect, that plaintiff was insubordinate and refused to proceed with certain work as directed. Plaintiff denies such conduct. Defendant produced several witnesses to support its • contention. Plaintiff had little, if any, corroboration for his side of the controversy.

Plaintiff’s contentions on the issue have been upheld by the verdict of two juries. The first verdict was set aside by this court as against the weight of evidence (262 App. Div. 826). The second verdict in plaintiff’s favor was set aside by the trial justice for a like reason. This court upheld that order (263 App. Div. 943).

On the third trial the trial justice directed a verdict for the defendant under section 457-a of the Civil Practice Act. Plaintiff appeals.

While we regret the necessity of continuing this litigation, we feel that we must reverse the judgment appealed from. This is not a case where a contrary verdict would be required to be set aside as unsupported by sufficient evidence, but merely one where it might be set aside on the basis of preponderance of proof. (See Morrison v. Ballantine & Sons, 261 App. Div. 500.) The story of the plaintiff that he was not insubordinate was not one that was incredible as a matter of law. The dispute was one involving the credibility of witnesses, and was one for the jury to determine.

Under the circumstances, we think that the issues presented must be passed on by another jury.

The judgment should be reversed, with costs to the appellant, and a new trial ordered.

Present — Martin, P. J., Untermyer, Dore, Cohn and Callahan, JJ.

Judgment unanimously reversed, with costs to the appellant, and a new trial ordered.