We are empowered to make the findings that the trial court should have made (DiBruno v. Abrams, 208 A.D.2d 672, 674, lv denied 85 N.Y.2d 804). We now find that there is no fair interpretation of the evidence to establish that defendant paid the debt in full.
Plaintiff's credible evidence proved that defendants tendered $8,000 in payment. However, the evidence presented by defendants failed to prove their affirmative defense of payment of the balance. We disagree with the trial court's evaluation of the documentary evidence, to wit, the photocopy of the receipt that defendant offered as proof of payment in full of the outstanding account. Plaintiff's driver testified that the handwritten entries on the copy were substantially different from those he wrote on the original. The document clearly appears to have been altered to reflect that defendant paid $38,000 rather than the $2,000 check and $6,000 cash payment that the driver received. Moreover, we find it beyond belief that defendants would tender the check and $36,000 in cash to the driver of plaintiff's delivery truck.
All concur except SAXE, J. who dissents in a memorandum as follows:
SAXE, J. dissenting.
The ultimate determination of the trial court following a non-jury trial, as well as its rejection of plaintiff's "best evidence" challenge to the critical piece of documentary evidence, was founded upon a clear, albeit unspoken, credibility finding. Where resolution of issues turns upon the credibility determination of the trial court as finder of fact, the determination is entitled to great weight (see, Grutman Katz Greene Humphrey v. Goldman, 251 A.D.2d 7), and this Court should not disturb those findings "unless it is obvious that the conclusions could not be reached under any fair interpretation of the evidence" (see, Universal Leasing Servs. v. Flushing Hae Kwan Rest., 169 A.D.2d 829, 830; see also, Coverdale v. Zucker, 261 A.D.2d 429, 1999 N.Y. App. Div. LEXIS 4800).
The majority's conclusion constitutes a clear and simple rejection of the credibility determination of the trial judge. While its skepticism as to the testimony of defendants' witness is understandable, I am unable to conclude that the witness's credibility must be rejected as a matter of law, or that there is no fair interpretation of the evidence supporting the court's finding.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.