Appeal from an order of the trial court setting aside the verdict of the jury as against the weight of the credible evidence. Order granting plaintiff's motion reversed on the law and the facts, with costs, motion denied, the verdict reinstated and the complaint dismissed on the law, with costs. In this action for partition, plaintiff claimed an undivided interest in real estate as devisee under the will of her mother who was the grantee in a deed from appellant of an undivided one-half interest in the subject property. That deed was dated August 13, 1937, and not recorded until June 28, 1944, twelve days after the death of the grantee. The issues whether that deed was ever delivered to the grantee and whether the grantee therein named became a tenant in common of the property with the appellant were submitted to a jury, for determination pursuant to section 1023 of the Civil Practice Act, upon contradictory and conflicting testimony of what had transpired at the time of the execution of the deed. The jury by its verdict found that the deed was not delivered and that the grantee was not a tenant in common with appellant in the property. Accepting, as the jury did, the testimony adduced by appellant, the verdict was not against the weight of the evidence. The issues presented were determined on conflicting testimony. The credibility and the weight to be given to the testimony of the witnesses were to be determined by the jury and not by the court, and the verdict of the jury upon such issues is binding upon the court even though it believes the jury in error. ( Jones v. Jones, 120 N.Y. 589, 599; Rubin v. Pilgrim Costume Co., 217 App. Div., 20, 21; Shea v. United States Trucking Corp., 200 App. Div. 821, 824, affd. 235 N.Y. 529; Loewinthan v. LeVine, 299 N.Y. 372, 377, 378.) Carswell, Acting P.J., Johnston, Adel, Sneed and MacCrate, JJ., concur.