(dissenting). I dissent and vote to affirm.
The conclusion as to the facts is not for us but was for the trial court. The record of a trial is not a mere deposition to be evaluated de novo. It is a usurpation of power to choose to do so in rejecting the result achieved by the trial court; for it is not within the appellate court’s competency to choose between possible results. Indeed, it is incumbent on it to exercise its province to the utmost stretch to sustain a judgment, not to disturb it — to avoid “ the monstrous penalty of a new trial ” (1 Wigmore, Evidence [3d ed.], § 21, p. 395).
Concur — Steuer, J. P., and Hecht, J.; Hofstadtbr, J., dissents in memorandum.