
    (67 Hun, 518.)
    EISENLORD v. CLUM et al.
    (Supreme Court, General Term, Third Department.
    February 15, 1893.)
    1. Province op Court and Jury—Directing Verdict.
    The rule .that the. court may direct a verdict when, by the evidence, there is no substantially disputed question of facts between the parties, and that the court may set aside the verdict when the weight of evidence is so overwhelmingly against it as to evince prejudice or passion on the part of the jury, does not authorize the court to-invade the province of the jury, and weigh the disputed facts and the evidence by its standard; nor should the court interfere and take a case from the jury by directing a vedict when there is a substantial dispute on a question of fact which affects the merits of the controversy, either arising out of a conflict of testimony or a doubt as to the credibility of witnesses.
    3. Same—Marriage.
    In an action involving the issue as to whether or not plaintiff was the legitimate child of a deceased person, and hence entitled to his land by descent, where there is positive evidence of the marriage of plaintiff's mother with the deceased, and admissions of their marriage by deceased, it is error for the court to direct a verdict in defendants’ favor, though there are strong circumstances in evidence impeaching the credibility of some of plaintiff’s witnesses, and rendering the marriage improbable.
    Appeal from circuit court, Montgomery county.
    Ejectment by John Peter Eisenlord against David H. Clum, John L. Eisenlord and others. The court directed a verdict for defendants, and from a judgment entered thereon plaintiff appeals.
    Reversed.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    William J. Byam, (A. J. Abbott, of counsel,) for appellant.
    Morrel & Spraker, (George W. Smith, of counsel,) for respondents.
   MAYHAM, P. J.

The plaintiff prosecutes this action to recover the possession of certain lands of which Peter O. Eisenlord died seised, and intestate, on the ground that he is the only son and heir at law of the intestate; the lands in dispute being in possession of the defendants, who claim title as heirs at law of the deceased. The plaintiff claims as the legitimate son of the deceased; the defendants claim as brothers and sisters of the deceased; and the principal question involved in controversy is as to the legitimacy of the plaintiff. The contention of the plaintiff is that Peter O. Eisenlord was in June, 1857, duly and lawfully married to Margaret Lipe,. and that he is the legitimate issue of that marriage, and the sole surviving child of Peter O. Eisenlord, and as such, in law, inherits his property. On the other hand, the contention of the defendants is that Peter 0. Eisenlord was never married, and that he died intestate, without lawful issue him surviving, and that they, as his next of kin and heirs at law, inherit his” property. If the plaintiff’s contention was right, then he was entitled to a verdict and judgment for the possession of the land in dispute. If the defendants’ contention was correct, then the plaintiff had no right to the land, and the defendants were entitled to a verdict and judgment in their favor. The determination of this controverted question was a fact to be found by the jury, unless the evidence was so overwhelming in favor of one theory and against the other as to present only a question of law for the court. The theory of our jurisprudence is that disputed questions of fact in actions at law must be tried and determined by a jury, and that right is guarantied to parties by the provisions of the fundamental law of the land, by which courts as well as legislators are to be governed. It is true that courts may, when by the evidence there is no substantially disputed question of fact between the parties, direct a verdict; or, when a verdict has been rendered, and the court can see that the weight of evidence in so overwhelming against it as to evince prejudice or passion on the part of the jury, the court may set their verdict aside. But this rule does not, I think, authorize the court to invade the province of the jury, and weigh the disputed facts and the evidence to support such dispute by its standard, and if, in its opinion, the jury reach a wrong conclusion, set aside a verdict for that reason. . 27or should the court interpose, and take a case from the jury by directing a verdict, when there is a substantial dispute on a question of fact, which affects the merits of the controversy, either arising out of conflict of testimony or a doubt as to the credibility of witnesses. Kavanagh v. Wilson, 70 N. Y. 177; Gildersleeve v. Landon, 73 N. Y. 609; Nicholson v. Conner, 8 Daly, 212; Elwood v. Telegraph Co., 45 N. Y. 554; Wait v. Insurance Co., 13 Hun, 371. Tested by the elementary principle underlying our judicial system, and by the rule established by these cases, and many others that might be cited, we think that there were disputed questions of fact in this case which should have been submitted to the jury. There was positive evidence of marriage by direct proof of the fact and the admissions of the deceased; and while, perhaps, this evidence was open to criticism, and doubt, that doubt, we think, should have been solved by the jury. On the other hand, there were strong circumstances in evidence bearing upon ■ the credibility of some of the plaintiff’s witnesses, and the truth of their testimony, as well as circumstances tending to prove the improbability of the marriage, which should, we think, have been submitted to and passed upon by the jury. Upon these disputed and controverted questions in this case we doubt whether the court would have felt authorized to have set aside the verdict under the rules we have stated, by which courts are governed in setting aside verdicts, if the same had been either for the plaintiff or defendants. We think the court erred in directing a verdict, and in not submitting the question to the jury, and that for that reason the judgment should be reversed. Judgment reversed; new trial ordered; costs to abide the event. All concur.  