I dissent and would grant respondent’s motion to confirm the report of the Referee. The majority in its opinion has set forth the facts relative to the instant disciplinary proceeding.
Hon. George Trosk, the learned Referee who heard this matter,, in his report stated:
“ Thus, the question is: do we accept the testimony of the Hedges or do we accept the testimony of respondent.
“ In my opinion, to state the question is to answer it.
“ I venture to say that it would be difficult, if not impossible, to find anywhere in the annals of the law, another case in *125which a witness was shown to be more corrupt and unworthy of belief than the evidence here demonstrated Hedges to be. And I believe that his wife, in pretended corroboration of him, merely did his bidding.
‘ ‘ Respondent, on the other hand, had practiced law actively here for about fifteen years before her indictment, and there is no evidence that, in all that time, there was ever the slightest blemish on her reputation, professional or otherwise. In addition, her good character and her creditable voluntary communal and professsional- activities are attested by the awards she received for them, and by the testimonials of the distinguished, unimpeachable, disinterested witnesses, referred to below.
“ In my opinion, the presumption flowing from respondent’s conviction was destroyed by the evidence here, and I believe that the statement of Mr. Justice Lydon, as referee in the Donegan proceeding: “ The evidence compels a finding that the verdict was a most unfortunate miscarriage of justice ’ is as applicable here — if not more so, considering the eighteen months respondent spent in prison as a result of it — as it was there.
“ The charge, insofar as it alleges the indictment and conviction of respondent is, of course, admitted. However, to the extent that it alleges that respondent’s conduct was ‘ in violation of Section 90 of the Judiciary Law ’, it was, in my opinion, not established.”
It is clear that we have every right to and should consider both the eminence, the seniority, and wisdom of a Referee where special competence is required (see Matter of Feller v. Wagner, 7 A D 2d 126).
In its opinion the majority seems to have departed from several of our well-settled rules. Grenerally, an appellate tribunal should not substitute its conclusions for those of the hearer of the facts. As was stated by our Court of Appeals in Amend v. Hurley (293 N. Y. 587, 594): “ 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; York Mortgage Corp. v. Clotar Const. Corp., 254 N. Y. 128; Smith v. Smith, 273 N. Y. 380).”
Whether we regard the rulings of the Referee as similar to those of a quasi-judicial determination, such as found in an administrative agency or with a jury finding in favor of a defendant, we have no warrant to set them aside merely because we differ from them.
*126If we regard them as similar to the findings of an administrative hearing officer, as long as the determinations have a reasonable or a rational basis, we cannot upset them. (Matter of 125 Bar Corp. v. State Liq. Auth., 24 N Y 2d 174, as well as Matter of Wager v. State Liq. Auth., 4 N Y 2d 465, and Matter of Colton v. Berman, 21 N Y 2d 322.) If we analogize the findings of the Referee with a jury verdict in favor of the defendant, then they should not be set aside unless it plainly appears that the evidence so preponderates the other way that they could not have been rendered on any fair interpretation of the evidence. (Marton v. McCasland, 16 A D 2d 781; Salvitelli v. Janusz, 19 A D 2d 886.) In the instant case it cannot be said that any fair interpretation of the evidence does not sustain the Referee.
Lastly, but most important, there is nothing basically unreconcilable between the record and the findings of the Referee. Thus, there is no proper basis for the exercise of a power to make new findings, such as would be permissible if we were to analogize the situation before us with that involving a nonjury action. Nor should we re-examine the assessment of the trier of fact as to the credibility of the witnesses who testified before him. (See United States v. McGuire, 381 F. 2d 306, 315.)
Although we may have the right to come to a new judgment contrary to that of the trier of the facts, such power is sparingly used. (9 Carmody-Wait, New York Practice, p. 604, § 177. Williams Eng. & Contr. Co. v. City of New York, 222 N. Y. 1; Caldwell v. Nicolson, 235 N. Y. 209.) The reluctance of appellate courts to make new findings has been noted in Conklin v. State of New York (22 A D 2d 481, 483) where the court said: “ Evaluations and determinations reached de novo at the appellate level, amounting, in effect, to complete redeterminations of basic issues, are usually best avoided. (Cf. Power v. Falk, 15 A D 2d 218, supra; Kundla v. Symans, 9 A D 2d 1021.) It must be observed, however tritely, that the Trial Judge, having observed the witnesses, having viewed the premises and having gauged the proof as it was developed is better qualified to weigh the determinative facts.”
Appellate courts usually shrink back, as we here should, from making new findings when the main question is credibility, since such action would arrogate the function of the Trial Judge. Particularly pertinent is the statement made by this court in Power v. Falk (15 A D 2d 216, 218) wherein we noted: ‘‘ While we would have the power to make findings, this is not a proper case for the exercise of that power, as much would depend on *127the credibility of the witnesses and the visible indications of authoritative recollection. ’ ’
It is apparent that the Referee who heard these proceedings, who observed the witnesses, had strong feelings with respect to the credibility of the witnesses. I do not believe that we should disregard his judgment in the matter.
It appears that respondent has spent most of her life helping handicapped children as a member of the New York Philanthropic League Order of True Sisters. In 1959 she received an honorary award for noteworthy humanitarian work. In addition, she has represented numerous indigents and had been appointed as counsel by many Supreme Court Justices in first degree murder cases. Respondent is an invalid and in effect has already been disbarred since the order of her temporary suspension, dated July 10, 1969.
Under all the circumstances surrounding this case it is my view that a more fitting punishment would be a suspension for a period of three years. In Matter of Thaler (30 A D 2d 166) comparable punishment was ordered for a lawyer who participated in bribery of public officials. By this punishment the canons will not only have been vindicated, but she will have been spared the supreme disgrace of disbarment, which in the light of the Referee’s report I find unwarranted.
Cafozzoli, J. P., Markewich, Steubr and Eager, JJ., concur in Per Curiam, opinion; Murphy, J., dissents in opinion.
Respondent disbarred as an attorney and counselor at law in the State of New York effective February 14, 1972.