Resolution of the question of the effectiveness of the assignment to cover the rights of the assignor as an heir of a deceased legatee rested upon the credibility of the assignor’s testimony and that of other witnesses at the hearing before the learned and experienced Surrogate. In Amend v. Hurley (293 N. Y. 587, 594) the court said: “ The advantages of the trial court who saw and heard the witnesses should be considered and, when truth hangs upon the credibility of witnesses, his decision should be given the greatest weight (Boyd v. Boyd, 252 N. Y. 422, 429; York Mortgage Corp. v. Clotar Const. Corp., 254 N. Y. 128, 134; Smith v. Smith, 273 N. Y. 380, 383).” (See, also, Loeb v. Dry Dock Sav. Bank, 4 A D 2d 190, 191, affd. 4 N Y 2d 810.)
The determination that appellant had assigned all interest in the estate and had not been imposed upon at the time of the execution of the assignment is supported by the record. Nor was there any convincing proof of unilateral mistake induced by respondent. Having finally disposed of any interest in the estate for an adequate consideration, appellant should not be permitted to reopen the transaction because subsequent events disclosed that he would have a claim as an heir for a deceased legatee. I, therefore, dissent and would affirm the order.
Rajbin and Eager, JJ., concur with McNally, J.; Várente, J., dissents and votes to affirm in opinion in which Breitel, J. P., concurs.
Resettled decree, amending the final account of the executors, modified, on the law and on the facts, to provide that the assign*262ment, dated January 9, 1957, is limited to the alleged rights of the assignor as legatee under the last will and testament of the decedent herein, and to direct payment to Max Katz of Toronto of his share as heir of the deceased legatee of said decedent, and, as so modified, affirmed, with costs to the appellant payable by Max Katz of New York. Settle order on notice.