Opinion
June 3, 1976
Appeal from a judgment of the Supreme Court, entered August 11, 1975 in Albany County, upon a decision of the court at a Trial Term, without a jury. On this appeal, the defendant-husband urges this court to reverse certain portions of a judgment entered in a contested matrimonial action which granted the plaintiff-wife a divorce on the ground of cruel and inhuman treatment and various other relief. He alleges that, in view of the relative financial circumstances of the parties, the trial court erred in granting possession of the marital residence to the wife, in refusing to order the sale of the marital residence and in ordering him to pay the sum of $80 per week for the support of the two-infant issue of the marriage. Our view of the record herein, which contains substantial testimony by both parties, reveals no reason to disturb the trial court's exercise of discretion in regard to the issues raised by defendant. Although defendant testified that he had sustained business reverses in years preceding the trial of this action, his testimony concerning his income, assets and living expenses was on many points confusing and contradictory. Under such circumstances, the advantage possessed by the trier of the fact in observing a witness first-hand and thus being able to pass upon his credibility, intelligence and bias requires that particular consideration be given to his conclusions (10 Carmody-Wait 2d, N Y Prac, § 70:382). Judgment affirmed, with costs. Koreman, P.J., Greenblott, Main, Larkin and Reynolds, JJ., concur.