Since the reversal by the Appellate Division of the judgment in favor of plaintiff on the third cause of action was upon the law and the facts and the complaint was dismissed on the ground that the jury’s verdict was against the weight of the credible evidence in the case, a new trial must be ordered. (Imbrey v. Prudential Ins. Co., 286 N. Y. 434, 441; Toone v. City of New York, 218 N. Y. 616.)
The judgment of the Appellate Division, insofar as it affirms the judgment of the trial court as to the second cause of action, should be affirmed, with costs.
The judgment of the Appellate Division, insofar as it reverses the judgment of the trial court as to the third cause of action, and dismisses that cause of action, should be reversed and a new trial thereof granted, with costs to abide the event.
Loughran, Oh. J., Lewis, Conway, Desmond, Dye, Ftjld and Froessel, JJ., concur.
Judgment accordingly.