In re the Estate of Winsweiler

146 Misc. 436 | N.Y. Sur. Ct. | 1933

Wingate, S.

This is a motion for .confirmation of the report of a referee who has determined the issue of the alleged gift of a bank book by decedent adversely to the claimant. The testimony adduced before him covers 568 typewritten pages, and the sole question presented is one of the credibility of the witnesses. It is primary that this question is for the trier of the facts, and he having means of determining that question not available on review, his disposition of it will not be disturbed in the absence of palpable error. (Matter of McNamara, 138 Misc. 526, 529; Matter of Jones, 139 id. 31, 37; Matter of Friend, 23 id. 300, 303; Anderson v. de Braekeleer, 25 id. 343, 344; West v. Van Tuyl, 119 N. Y. 620, 621; Tummonds v. Moody, 3 N. Y. Supp. 714; reported by memorandum only, 51 Hun, 637; Beach v. Perry, 6 N. Y. Supp. 940, 941; reported by memorandum only, 53 Hun, 638; Pasquini v. Lowery, 18 N. Y. Supp. 284, 286; reported by memorandum only, 63 Hun, 632; Farmer v. Emigrant Industrial Sav. Bank, 10 N. Y. Supp. 425; reported by memorandum only, 56 Hun, 650; affd., 124 N. Y. 646.) The complaint of the respondent that the referee deemed portions of her testimony true and disbelieved other parts thereof, is without merit. As the Court of Appeals says in Matter of McMillan (218 N. Y. 64, at p. 69): “ it has often been held that a jury or other triers of fact need believe a witness only so far as they deem his testimony credible.”

The report of the referee is, therefore, in all respects confirmed.

Proceed accordingly.