dissents and votes to reverse and to direct a new hearing, with the following memorandum: The conclusion of the Eeferee, which was confirmed by the order appealed from, to the effect that there was no proof of the delivery of the check by the decedent to William, may be justified only by disregarding the testimony of William and Josephine as to the delivery of the cheek. While it was within the province of the Eeferee to sift the proof, it was not within his province to disregard that which he had admitted in evidence and later determined to be incompetent. The testimony, whether competent or not, had been admitted, and appellants were entitled to rely on it. The Eeferee could have refused to credit it, but neither he nor the Surrogate could ignore it, nor may we do so. (Flora v. Carbean, 38 N. Y. 111, 113; Levy v. Louvre Realty Co., 222 N. Y. 14, 21; Gries v. Long Island Home Ltd., 274 App. Div. 938.) Since the determinative question is one of veracity, it should be decided by the trier of the facts, who can see and hear the witnesses, and who will be in a better position to do so than was the Surrogate, or than this court is on consideration of the record. (See Boyd v. Boyd, 252 N. Y. 422, 429; Amend v. Hurley, 293 N. Y. 587, 594, and Ferguson v. Ferguson, 271 App. Div. 976.)
Schmidt, Beldock and Ughetta, JJ., concur with Murphy, J.; Nolan, P. J., dissents with memorandum.
Decree of the Surrogate’s Court, Kings County, affirmed, with costs, payable by appellants personally.