I would affirm the judgment appealed from.
The case involves pure questions of fact as to whether the parties made an agreement and as to what their *38intentions were. I agree with the Trial Judge’s analysis of the evidence on the basis of which he resolved these questions of fact in favor of defendant. But even if the case were closer, I would still affirm the Trial Judge’s findings. The Trial Judge here sat through a month of trial involving about 3,000 pages of transcript and close to 500 exhibits. He thus had much more opportunity to consider the evidence than we had. And of course he had the opportunity to observe the witnesses, which we did not. As the Court of Appeals recently said, precisely in relation to determining whether to impose a constructive trust on property and what the agreement of the parties was the appellate court must take “into account in a close case ‘the fact that the trial judge had the advantage of seeing the witnesses’ (York Mtge. Corp. v Clotar Constr. Corp., 254 NY 128, 134).” (Miller v Merrell, 53 NY2d 881, 883.) “In a case so close as this, let the court of first instance decide. Face to face with living witnesses the original trier of the facts holds a position of advantage from which appellate judges are excluded. In doubtful cases the exercise of his power of observation often proves the most accurate method of ascertaining the truth * * * To the sophistication and sagacity of the trial judge the law confides the duty of appraisal.” (Boyd v Boyd, 252 NY 422, 429.)
Sullivan, J. P., Bloom and Alexander, JJ., concur with Fein, J.; Silverman, J., dissents in part in an opinion.
Judgment, Supreme Court, New York County, entered on October 19, 1981, modified, on the law and the facts, to reverse as to the second, fourth and sixth causes of action, with judgment granted to plaintiff on those causes of action, and otherwise affirmed, without costs and without disbursements.