#### JOHN PETER EISENLORD, Appellant, *v.*DAVID H. CLUM, CATHERINE L. EISENLORD and Others, Respondents.

*Verdict directed by the court*— *disputed questions of fact*— *invasion of the province of the jury.*

A trial court has no authority to interpose and take a case from the jury ky 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 a conflict of testimony or a doubt as to the credibility of witnesses.

Appeal by the plaintiff, John Peter Eisenlord, from a judgment of the Supreme Court, entered in the office of the clerk of Montgomery county on the 28th day of September, 1891, upon the verdict of a jury in favor of the defendants, rendered by direction of the court at circuit.

*William J. JByam*and *A. J.*Abbott, for the appellant.

*George W.*Smith, for the respondents.

Mayham, P. J.:

The plaintiff prosecutes this action to recover the possession of certain lands of which Peter 0. Eisenlord died seized and intestate, *519on tbe ground that be is tbe only son and beir-at-law of tbe intestate, tbe lands in dispute being in possession of tbe defendants wbo claims title as beirs-at-law of the deceased.

• Tbe plaintiff claims as the legitimate son of tbe deceased; tbe defendants claim as-brothers and sisters of tbe deceased, and tbe principal question involved in controversy is as to tbe legitimacy of tbe plaintiff.

The contention of tbe plaintiff is that, Peter 0. Eisenlord was in June, 1857, duly and lawfully married to Margaret Lipe, and that he is tbe legitimate issue of that marriage and tbe sole surviving child of Peter 0. Eisenlord, and as such, in law, inherits bis property.

On the other band tbe contention of tbe defendants is, that -Peter O. Eisenlord was- never married, and- that be died intestate without lawful issue him surviving, and that they, as bis next of kin and beirs-at-law, inherit bis property.

If tbe plaintiff’s contention was right, then be was entitled to a verdict and judgment for the possession of tbe land in dispute.

If tbe defendant’s contention was correct, then tbe plaintiff bad no right to tbe land, and tbe defendants were entitled to a verdict and judgment in their favor.

Tbe determination of this controverted question was-a fact to be found by tbe jury, unless tbe evidence was so overwhelming in favor of one theory and against tbe other as to present only a question of law for tbe court.

Tbe 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 tbe 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 tbe evidence there is no substantially disputed question of fact beween tbe parties, direct a verdict, or when a verdict has been rendered and tbe court can see that the weight of evidence is so overwhelming against it as to evince prejudice or passion on the part of tbe jury, tbe court may set their verdict aside.

But this rule does not, I think, authorize tbe court to invade tbe province of tbe jury and weigh tbe disputed facts, and tbe evidence to support such dispute by its standard, and if, in its opinion, tbe jury reach a wrong conclusion, set aside a verdict for that reason.

*520Nor 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 admission 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, Ave think, have been submitted to, and passed upon by the jury.

Hpon these disputed and controverted questions in this ease, 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 defendant.

*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.

PutNAM and HeeRioK, JJ., concurred.

Judgment reversed and a new trial ordered, costs to abide the event.