
    John Peter Eisenlord, App’lt, v. David H. Clum et al., Resp’ts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February 15, 1893.)
    
    Trial — Direction of verdict.
    Where 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, it is error to take the case from the jury by directing a verdict.
    Appeal from a judgment entered upon the verdict of a jury in favor of the defendants, by the direction of the court.
    
      William J. Byam (A. J. Abbott, of counsel), for app’lt: Morrell & Spraker (George W. Smith, of counsel), for resp’ts.
   Mayham, P. J.

The plaintiff prosecutes this action to recover the possession of certain lands of which Peter 0. Bisenlord died seized 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 0. Bisenlord 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 0. Bisenlord, and, as such, in law inherits his property.

On the other hand the contention of the defendants is that Peter O. Bisenlord 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 guaranteed 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 is 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.

Nor 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 id., 609; Nicholson v. Conner, 8 Daly, 212; Elwood v. Tel. Co., 45 N. Y., 554; Wait v. Agricultural Ins. 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.

Putnam and Herrick, JJ., concur.  