In re Moss — 86 N.Y. Sup. Ct. 611

Majority

p. 611

In the Matter of Sophia Moss.

New trial ordered upon issues to be framed in the order to be entered hereon, and case sent to the Court of Common Pleas for such retrial, with costs to appellant to abide event.—

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 by 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 1he opinion of courts upon given questions of fact, with, which opinion the nury has nothing to do. The jury lias to determine the questions of fact governed by the impression winch the evidence offered during the progress of the trial makes upon their judgment — such impressions to be guided and controlled by the rules of law which may be 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 nazardous 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 tne trial of the issues presented was as to

p. 612

•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 be 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.

Follctt and Parker, JJ., concurred.