While, if this case had been submitted to the jury and they had by their verdict decided that Mr. Miller .received 133 votes instead *184of 140 in the election district in question, I think it would clearly have been the-duty of "the court to have set -aside such verdict as against the greatest weight of evidence, yet the evidence having presented an actual issue of fact, under the authority of McDonald v. Met. St. Ry. Co. (167 N. Y. 66) I think the ■ court was required to submit the question to the jury in the first instance instead of directing a verdict, notwithstanding that the verdict which was directed was the only one which could be sustained under the evidence, and for that reason I agree with Mr. Justice Kellogg that the judgment must be reversed, without costs, and a new trial granted.
Judgment .and order reversed and new trial granted, without costs.