McCall v. Town of Middlebury

Judgment unanimously affirmed, without costs. Memorandum: 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, affd 294 NY 731). 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 NY 587, 594; Brunstein v Brunstein, 273 App Div 847). 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 AD2d 822, 823; Loeb v Dry Dock Sav. Bank, 4 AD2d 190, 191, affd 4 NY2d 810). 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 credibility adversely to the plaintiffs. An analysis of 737 the defendants’ evidence, viewed in its most favorable light, amply sustains the trial court’s findings and determination of nonabandonment within the context of subdivision 1 of section 205 of the Highway Law. (Appeal from judgment of Wyoming Supreme Court in action under Highway Law, art 8.) Present—Marsh, P. J., Cardamone, Simons, Mahoney and Witmer, JJ.