In the Matter of Rachel Khotim, as Administratrix of the Estate of Mark Garwitt, Deceased. Louis J. Lefkowitz, as Attorney-General of the State of New York, Appellant, and Aleksandr K. Mikheev, et al., Respondents

In the Matter of Rachel Khotim, as Administratrix of the Estate of Mark Garwitt, Deceased. Louis J. Lefkowitz, as Attorney-General of the State of New York, Appellant, and Aleksandr K. Mikheev, et al., Respondents. [MAJORITY] Order, Surrogate’s Court, New York County, entered on April 16, 1975, unanimously affirmed for the reasons stated in the decisions of Di Falco, S., without costs and without disbursements. Application for leave to appeal to the Court of Appeals granted. Concur—Markewich, J. P., Kupferman, Lupiano, Capozzoli and Nunez, JJ. Judgment, Supreme Court, Bronx County, entered September 19, 1974, on a verdict of a jury in favor of the defendant; order, Supreme Court, Bronx County, entered July 1, 1974, denying the plaintiffs-appellants’ motion to set aside the jury verdict; order, Supreme Court, Bronx County, entered November 6, 1974, denying the plaintiffs-appellants’ motion to strike the defendant’s bill of costs, unanimously affirmed, with $60 costs and disbursements to respondent. The credibility of the testimony of the only witness who claimed to have seen the accident presented a question of fact for the jury. Its resolution in favor of the defendant cannot be disturbed (Marton v McCasland, 16 AD2d 781). We find no merit to the claim that the charge to the jury was confusing. Furthermore, the appellants took no exception to it. (See Brown v Du Frey, 1 NY2d 190.) We see no sufficient reason to deny costs to the prevailing party. Concur—Kupferman, J. P., Murphy, Birns, Silverman and Lynch, JJ.