Passmore v. Morris

Judgment reversed on the law and facts, and new trial granted, with costs to the appellants to abide the event, on the ground that the evidence as to the will drawn in June, and connected circumstances, were competent, and the court erred in excluding it, and this court cannot say that this evidence would not have changed the verdict of the jury, the proof here of undue influence being so slight. Van Kirk, P. J., Whitmyer, Hill and Hasbrouck, JJ., concur; Davis, J., dissents and votes to affirm on the ground that the defendants were not prejudiced *749by the failure to admit in evidence the will of decedent dated June 10, 1926, it not appearing that the contents of the will related to the controversy, and that if it was so related the evidence was merely cumulative; and on the further ground that a sharply contested question of fact was presented as to whether there was undue influence exercised over the decedent in the execution of the deed, that that question was determined adversely to the defendants by the jury and by the trial court, who saw and heard the witnesses, and that the decision reached by them should not be reversed except where the decision is clearly erroneous. (Boyd v. Boyd, 252 N. Y. 422; Costa v. Benger, 254 id.-: York Mortgage Corp. v. Clotar Construction Corp., Id. 128.)