In re the Downey

226 A.D. 683

Opinion

Decree of the Surrogate’s Court of Kings county reversed upon the law and the facts, and new trial ordered, costs payable out of the estate to abide the event. The uncontradieted testimony is that there was an understanding between claimant and her husband that whatever she might earn through the board and care of decedent and his wife should belong to her and not to her husband. It was competent for the parties to do this. The claim under such circumstances became that of the claimant as an original claim and not by assignment from the husband. In such case the husband may testify in behalf of the wife in support of the claim and his testimony is not barred by the statute. (Civ. Prae. Act, § 347; Lashaw v. Croissant, 88 Hun, 206, 210; Carver v. Wagner, 51 App. Div. 47, 50; Briggs v. Devoe, 89 id. 115, 118.) Lazansky, P. J., Hagarty, Seeger, Carswell and Scudder, JJ., concur.