Upon the rendition of the verdict upon the trial counsel for defendant moved to set aside the same on all the grounds stated in section 999 of the Code of Civil Procedure, and especially upon the ground that the verdict was contrary to the weight of the evidence. The learned trial court in entertaining such motion stated that it desired the determination of the matters involved in the motion by the Appellate Division in the first instance, but stated that it would, for the purpose of permitting a review of the facts by the appellate court, deny defendant’s motion pro forma. Subsequently an order was granted and entered denying defendant’s motion without qualification.
We think that notwithstanding the expressed reluctance of the trial court to pass upon the motion upon the merits, its subset quent order denying the same evidenced more than a mere pro forma decision of such motion, and that for the purposes of this appeal we may consider the motion as denied by the trial court upon the merits.
Upon each of the issues as to the execution of the release by plaintiff, and as to plaintiff’s blindness being the result of his fall, and not* from disease, the verdict of the jury was against the weight of the evidence.
*395The order should be reversed, with costs, and a new. trial granted, with costs to appellant to abide the event.
All concurred, except Kruse, P. J., who dissented, and voted for dismissal of the appeal in a memorandum.