Opinion
July 13, 1950.
Present — Taylor, P.J., McCurn, Love, Vaughan and Kimball, JJ.
Decree and order reversed on the law and a new trial granted, with costs to the appellants to abide the event. Memorandum: The court charged in part: "If the opinion of the man claiming superior information in matters of handwriting is accepted, it follows that the two witnesses named in the will testified falsely upon matters as to which they inescapably knew the truth. That is the issue presented to you." We believe that the charge on that subject was erroneous and so prejudicial as to require a reversal and a new trial. (See Smith v. Lehigh Valley R.R. Co., 170 N.Y. 394; Segaloff v. Interurban Street Ry. Co., 102 N.Y.S. 509, and Beers v. Metropolitan Street Ry. Co., 88 App. Div. 9.) All concur. (Appeal from decree of Erie Surrogate's Court after trial in Supreme Court dismissing the objections to a will, and admitting the will to probate; also appeal from order of Erie Trial Term denying motion by objectors for a new trial.)