O'Keefe v. O'Keefe

O’Keefe v. O’Keefe. (City Court of Brooklyn, General Term. November 24, 1890.) Divorce—Review on Appeal. Where the evidence is conflicting, the decision of the trial court refusing a wife a separation on the ground of cruel and inhuman treatment will not be disturbed. Appeal from special term. Action for divorce by Mary O’Keefe against William H. O’Keefe. There was judgment for plaintiff, and defendant appeals. Argued before Osborne and Van Wyck, JJ. Thomas F. Magner, for appellant. Jerry A. Wernberg, for respondent. [MAJORITY — Osborne, J.] Osborne, J. Action for a separation on the ground of cruel and inhuman treatment. The learned trial judge has found in favor of the defendant, and the only question before us on this appeal is as to whether the findings are supported by the evidence. We have carefully examined all the evidence, and are of the opinion that the judgment should be affirmed. It is true that there is a decided conflict, in many instances, between the plaintiff and her witnesses and the defendant and his witnesses; but there is no such preponderance of evidence in favor of the plaintiff as would justify us in interfering with the conclusions of the trial court. The learned trial judge had the witnesses before him, heard them testify, and had full opportunity to observe their manner and bearing while on the witness stand, and was thus" able to weigh their testimony, and to ascertain the degree of credibility to be attached to the statements of the various witnesses better than we can from the printed case on appeal. A perusal of the testimony satisfies "us that, while the conduct of the defendant was in some cases highly censurable, yet plaintiff has fallen far short of establishing such a case in her favor as would entitle her to the relief that she seeks. Judgment affirmed, no costs.