McCall v. Town of Middlebury
| Citation | 382 N.Y.S.2d 179,52 A.D.2d 736 |
| Parties | Alan R. McCALL and Sara L. McCall, Appellants, v. TOWN OF MIDDLEBURY et al., Respondents. |
| Decision Date | 09 April 1976 |
| Court | New York Supreme Court Appellate Division |
Lamb, Webster, Walz, Donovan & Sullivan, Luther Webster, Rochester, for appellants.
Kibbe & King, Attica, David P. Feldman, Buffalo, for respondents Town of Middlebury and Wallace Osterman.
Babcock & Babcock, Batavia, David P. Feldman, Buffalo, for respondents Wass.
Lutwack & Feldman, David P. Feldman, Buffalo, for respondent Gill's Hillside, Inc.
Before MARSH, P.J., and CARDAMONE, SIMONS, MAHONEY and WITMER, JJ.
Plaintiffs appeal from judgment, after trial without a jury, dismissing plaintiffs' complaint in an action for a judgment, pursuant to subdivision 1 of section 205 of the Highway Law, declaring abandoned a certain portion of the Town highway abutting plaintiffs' premises. The trial court factually determined that the disputed portion of the Town highway here in issue had not been abandoned within the meaning of section 205 of the Highway Law. In urging reversal plaintiffs contend that such determination was against the weight of the evidence.
Our function in appellate review is to determine whether there is credible proof in the record to sustain the findings and conclusion of the trial court. In such review the record proof is to be given a view most favorable to sustain the judgment (Van Roo v. Van Roo, 268 App.Div. 170, 172, 49 N.Y.S.2d 220, 222, affd. 294 N.Y. 731, 61 N.E.2d 456). In addition, when, as here, the truth hinges upon the credibility of the witnesses, the trial court's observation advantage is to be given deference and its determination should be given great weight (Amend v. Hurley, 293 N.Y. 587, 594, 59 N.E.2d 416, 418; Brunstein v. Brunstein, 273 App.Div 847, 76 N.Y.S.2d 599). Further, we should not disturb the findings of the court as the trier of the facts unless its conclusion could not be reached under any fair interpretation of the evidence (Billington v. State of New York, 33 A.D.2d 822, 823, 305 N.Y.S.2d 737, 739; Loeb v. Dry Dock Sav. Bank, 4 A.D.2d 190, 191, 164 N.Y.S.2d 408, 409, affd. 4 N.Y.2d 810, 173 N.Y.S.2d 614, 149 N.E.2d 894).
In view of the diametrically opposed testimony concerning the use and activity involving the portion of the Town road here in issue, the credibility of the respective witnesses becomes determinative. Trial court's decision implicitly resolved such issue of...
To continue reading
Request your trial
-
Aetna Cas. & Sur. Co. v. Liberty Mut. Ins. Co.
...parties, and the findings and conclusions of the trial court are sustained by credible proof in the record (see McCall v. Town of Middlebury, 52 A.D.2d 736, 382 N.Y.S.2d 179). The parties, having litigated these issues, are not entitled to relitigate them. We consider it of no consequence t......
-
Atkin v. Union Processing Corp.
...of witnesses and its findings should be given great deference (Perry v. Perry, 79 A.D.2d 851, 434 N.Y.S.2d 496; McCall v. Town of Middlebury, 52 A.D.2d 736, 382 N.Y.S.2d 179). The record in this case supports the trial court's finding that an oral agreement not to compete was part of plaint......
-
Saff v. Saff
...credibility (VanRoo v. VanRoo, 268 App.Div. 170, 172, 49 N.Y.S.2d 220, 222, affd., 294 N.Y. 731, 61 N.E.2d 456; McCall v. Town of Middlebury, 52 A.D.2d 736, 382 N.Y.S.2d 179). Marriage is a confidential relationship, of course, and there was a transfer of funds and labor by appellant to res......
-
Kirley v. Department of Fire, City of Oneida
...of petitioner's disabling injury and, therefore, that petitioner was eligible for section 207-a benefits ( see, McCall v. Town of Middlebury, 52 A.D.2d 736, 382 N.Y.S.2d 179). Finally, we hold that Supreme Court did not err in denying admission of Baker's written report into evidence. Supre......