(dissenting). We dissent from so much of the disposition of the majority as orders a new trial on the plaintiff’s complaint. In so doing we adopt the statement of the facts appearing in the majority opinion. On these facts we would find that not only was the jury verdict against the weight of evidence but actually without any evidentiary basis at all. What appears in the record is merely a deduction by the plaintiff and his co-worker that defendant’s cable was not enclosed in concrete. As the opinion demonstrates, neither the plaintiff nor his witness was in a position to observe whether there was such a concrete duct or not. In the face of the substantial evidence of the presence of the concrete covering, the possible inferences that could be drawn from the evidence offered by plaintiff cannot even raise an issue. Incredible evidence is no evidence at all (Tosto v. Marra Bros., 275 App. Div. 686, affd. 299 N. Y. 700; 22 N. Y. Jur., Evidence, § 649). The disposition made leaves open the claim of the defendants against Kaufman, and with this we are in accord.
The complaint should be dismissed and the counterclaim severed for further proceeding.
Botein, P. J., Rabin and Witmer, JJ., concur in Per Curiam opinion; Steuer, J., dissents in opinion in which Valente, J., concurs.
Judgment reversed, on the law and on the facts, and a new trial ordered, with $50 costs to abide the event.