In re Boesenberg

265 A.D. 484, 39 N.Y.S.2d 418

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 29, 1943
• Status: Published

Opinion

Per Curiam.

We deem that it was proper for the Surrogate to receive in evidence the letter (respondent’s Exhibit 2) for the purpose of establishing an offer by the deceased husband to resume marital relations with his wife. If the Surrogate construed the letter to contain such an offer, the failure of the wife to accept reconciliation might be given due weight on the issue of abandonment. However, it was improper for the Surrogate to consider the self-serving declarations as to past events contained in the letter as establishing the matters therein set forth bearing on the issue of an alleged prior abandonment. A like ruling would apply as to the probative value of the self-serving declarations by deceased in his last will.

Respondent having offered in evidence the letter referred to, thereby waived the provisions of section 347 of the Civil Practice Act as to testimony by petitioner concerning her alleged failure to accept the offer of reconciliation.

The self-serving declarations bore directly on the closely contested issue of abandonment, and we are unable to say that undue weight was not ascribed to them.

The decree should be reversed and a new trial ordered, with costs to the appellant to abide the event, payable out of the estate.

Towhley, Uhtermyer, Dore, Cohit and Callahait, JJ., concur.

Decree unanimously reversed and a new trial ordered, with costs to the appellant to abide the event, payable out of the estate.