A motion was entertained by the judge who presided at the Trial Term upon his minutes to set aside the verdict of the jury and for a new trial “ upon the exceptions and because said verdict was contrary to law, contrary to the evidence, against the weight of evidence and for excessive damages.” The motion was granted. The Appellate Division has affirmed the order of the trial judge. The presumption stated in section 1338 of the Code of Civil Procedure is not applicable to this case. A question of fact is involved. The order must be affirmed without passing upon the questions of law discussed by counsel.

The order should be affirmed and judgment absolute directed against the appellant upon his stipulation, with costs.

Hiscock, Ch. J., Chase, Collin, Cuddeback, Hogan, McLaughlin and Crane, JJ., concur.

Order affirmed, etc.