Bergner v. Kick

Callahan, J. (dissenting).

I dissent and vote to affirm. It is improper for the majority to substitute their judgment for that of the court on the credible evidence adduced from the testimony and exhibits presented to the trial court. I agree with the determination of the trial court that the plaintiffs met their burden of proof by clear and convincing evidence as enunciated in Huggins v Castle Estates (36 NY2d 427) and are, therefore, entitled to judgment as against both defendants. The evidence that showed defendant Kick had exhibited to the plaintiffs a map showing his entire property…