Opinion
Argued April 12, 1945
Decided May 24, 1945
Appeal from the Supreme Court, Appellate Division, Fourth Department, SEARING, S.
Richard T. Anderson and Donald V. Carr for appellants. Sidney H. Singer and Morris Garber for respondent.
It was within the power of the Appellate Division, in the exercise of its discretion, to reverse the decree of the Surrogate upon the ground that, in its opinion, the verdict was contrary to and against the clear weight of the evidence. The Appellate Division was without power, however, to direct a contrary verdict in view of the fact that the evidence was not wholly insufficient in point of law to sustain the jury's verdict. (See Blum v. Fresh Grown Preserve Corp., 292 N.Y. 241, 245-246.)
The order of the Appellate Division and the decree of the Surrogate's Court should be reversed and a new trial granted, with costs in this court to abide the event.
LEHMAN, Ch. J., LOUGHRAN, LEWIS, CONWAY, DESMOND, THACHER and DYE, JJ., concur.
Ordered accordingly.