In Re the Probate of the Will of Whipple

62 N.E.2d 76, 294 N.Y. 292, 1945 N.Y. LEXIS 804

Opinion

Per Curiam.

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 Cory., 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.