
    In the Matter of the Application for the Probate of the Will of Sophia Moss, Deceased.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 15, 1894.)
    
    1. Appeal—New trial.
    Where the true issue involved has been lost sight of in the court below and the judgment rendered was not based only upon'evidence pertinent to such issue, a new trial will bo ordered.
    3, Same—Opinion of appellate court as to facts.
    The appellate' court will not express an opinion as to the facts, on reversing a judgment in a case triable by jury.
    Appeal from a decree of the surrogate denying an application for the probate of a will.
    
      J. W. Weed and Louis Marshall, for app’lt; K A. Jacob, for resp’t.
   Van Brunt, P. J.

It is impossible, in the disposition which is to be made of the appeal in the case at bar, to discuss in this opinion, at any length, the evidence which is contained in the record, without giving expression to opinions formed bj' a consideration of this evidence, to which undue and improper weight may be given upon a retrial of this proceeding before a jury. It has become too much the practice to permit the presentation to juries of the opinion of courts upon given questions of fact, with which opinion the jury has nothing to do. The jury has to determine the questions of fact, governed by the impression which the evidence offered during the progress of the trial makes upon their judgement,—such impressions to he guided and controlled by the rules of law which may he laid down for their guidance by the charge of the court. The opinions of an appellate court in the discussion of evidence have no place in the jury box. But they are so often used for the purpose of influencing the judgment of juries that it has become hazardous to indulge in such discussion. In the case at bar we have determined, therefore, simply to state the conclusion to which we have arrived, and to give some expression of opinion as to the general character of the rulings of the court below in respect to the large mass of evidence which makes up the record upon this appeal.

• It is undoubtedly true that the door was thrown wide open for the admission of evidence upon the trial of this case,—so wide open that a vast amount of irrelevant and improper material has been embraced within this record, and has probably influenced the mind of the surrogate in coming to the conclusion at which he arrived. The question which was to be determined upon the trial of the issues presented was as to whether the will in question ■was the will of the testatrix, and not as to whether, subsequent to the time of the date of that will, her sons robbed her. A consideration of the evidence in this case leads us irresistibly to the conclusion that the true issue which was involved was lost sight of, and that there never has been any judgment based only upon evidence pertinent to such issue. We think, therefore, under the circumstances, that a new trial should he ordered upon issues to be framed in the order to be entered upon this decision, and the case sent to the court of common pleas..for such retrial, with costs to the appellant, to abide the event.

All concur.  