Since we all agree that the evidence adduced, if credited by the jury, was sufficient to exonerate the truck driver from liability (Trial Term’s opinion to the contrary notwithstanding), the only serious question presented hereon is whether a new trial is mandated because of the receipt in evidence of Smith’s prior inconsistent statements and the circumstances surrounding their execution as part of the trucking defendants’ direct case. I do not believe that it is.
Even if Smith’s prior statements were inadmissible as evidence of an attempted "bribe” (cf. Nowack v Metropolitan St. Ry. Co., 166 NY 433), the record reveals that such statements were not only introduced without objection, but that counsel for the plaintiff and the taxi defendants were as eager, if not more so, than the trucking defendants’ attorney to present them to the jurors.
The failure of plaintiff and the taxi defendants to object to the introduction of Smith’s prior statements was clearly not an oversight. Without it, the jurors would have been presented only with the contrasting versions of the accident given by the respective drivers, with each one attributing the blame to the other; and Smith’s testimony, as the only disinterested eyewitness, supporting the truck driver’s rendition. At a retrial a repetition of this testimony can be anticipated. The plaintiff and the taxi defendants will then have to decide whether or not to introduce Smith’s prior inconsistent statements. If they do, the new panel of jurors will be presented with the same evidence as their predecessors. Without them, I fail to see how any different result can reasonably be expected. Accordingly, I see no justification for setting aside the verdict on this ground.
The Trial Judge’s decision to set aside the verdict appears to have been predicated more on his own disbelief of Smith’s testimony than on any prejudice resulting from the introduction of the assertedly inflammatory statements. However, it is *473fundamental "that, under our method of procedure, it was the province of the jury, not the court, to say whether his testimony was entitled to belief.” (Williams v Delaware Lackawanna & Western R.R. Co., 155 NY 158, 163.) And equally well established is the principle that a defendant’s jury verdict may not be upset unless it clearly appears "that the preponderance in favor of the plaintiff is so great that the jury could not have reached the conclusion they did upon any fair interpretation of the evidence.” (Mieuli v New York & Queens County Ry. Co., 136 App Div 373, 375.) That is not the situation here.
Finally, and before concluding, I do believe a verdict for plaintiff in this case in excess of $500,000 is excessive.
In light of the foregoing, I vote to reverse the order on appeal and to set aside the verdict and direct a new trial against the taxi defendants only, unless plaintiff stipulates to accept the sum of $500,000, in which event said verdict, as modified, should be reinstated.
Lupiano, Lane and Nunez, JJ., concur with Birns, J.; Murphy, J. P., dissents in an opinion.
Order, Supreme Court, New York County, entered on June 3, 1975, affirmed, without costs and without disbursements.