Goldsmith v. Goldsmith (272 A.D.2d 1011, 1947)

The judgment of the trial court is contrary to the weight of the credible evidence. Upon the record before us we think that the testimony of plaintiff and her witnesses did not satisfactorily explain or overcome the admissions contained in the documentary evidence. 'The judgment accordingly should be reversed and a new trial ordered, without costs. Appeal from order dismissed. As the judgment has been reversed and a new trial ordered, it is unnecessary to pass upon this appeal from the order denying the motion for a new trial on the ground of newly discovered evidence.

Dore, J.

(dissenting). Defendant’s own testimony and his conduct over a long period of time fully justified the court in holding defendant unworthy of belief. The ultimate issue is credibility. The trial court had ample credible evidence to support the finding that there was cohabitation after the parties agreed upon the marriage relation and that defendant is the father of plaintiff’s child. On this record such finding of an experienced trial justice who saw and heard the witnesses, should not be overruled (Boyd v. Boyd, 252 N. Y. 422, 429).

The issue raised by the letters and telegrams was properly resolved in plaintiff’s favor as it was natural that the parties concerned should wish for a solemnizing ceremony.

The motion for retrial was properly denied.

I dissent and vote to affirm the judgment and order appealed from.

Peek, P. J., Glennon, Cohn and Callahan, JJ., concur in decision; Dore, J., dissents in opinion.

Judgment reversed and a new trial ordered, without costs. Appeal from order dismissed. No opinion.