Kissling v. Hearn

Appellate Division of the Supreme Court of New York

Kissling v. Hearn

264 A.D. 900, 35 N.Y.S.2d 821, 1942 N.Y. App. Div. LEXIS 5304

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 29, 1942

StatusPublished

Cited by3 cases

This text of 264 A.D. 900 (Kissling v. Hearn) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kissling v. Hearn, 264 A.D. 900, 35 N.Y.S.2d 821, 1942 N.Y. App. Div. LEXIS 5304 (N.Y. Ct. App. 1942).

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Opinion

Action for judgment directing defendant to perform specifically a separation agreement by executing and delivering a valid waiver of the right of election to take against the probated will of plaintiff’s testatrix. Order denying motion of defendant tc dismiss the complaint under rule 113 of the Rules of Civil Practice reversed on the law, with ten dollars costs and disbursements, and the motion granted, without costs. Appeal from order denying defendant’s motion for judgment on the pleadings dismissing the complaint dismissed, without costs, in the light of the foregoing determination. The defense of res judicata is established, On the prior appeal it was determined not only that the waiver provision was ineffective because it was unacknowledged, but that the separation agreement, as an instrument, did not operate to deprive defendant of the right of election. (Matter of Hearn, 261 App. Div. 924, 925; affd., without opinion, 287 N. Y. 775. See, also, Matter of Colaci, 288 id. 158.) In the absence of an acknowledgment, the plaintiff cannot invoke an agreement to execute a waiver, which would accomplish by indirection a dispensation of the requirement of subdivision 9 of section 18 of the Decedent Estate Law. (Dung v. Parker, 52 N. Y. 494; Belmar Contracting Co. v. State of New York, 233 id. 189, 194.) Lazansky, P. J., Hagarty, Carswell, Johnston and Adel, JJ., concur.

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Action for judgment directing defendant to perform specifically a separation agreement by executing and delivering a valid waiver of the right of election to take against the probated will of plaintiff’s testatrix. Order denying motion of defendant tc dismiss the complaint under rule 113 of the Rules of Civil Practice reversed on the law, with ten dollars costs and disbursements, and the motion granted, without costs. Appeal from order denying defendant’s motion for judgment on the pleadings dismissing the complaint dismissed, without costs, in the light of the foregoing determination. The defense of res judicata is established, On the prior appeal it was determined not only that the waiver provision was ineffective because it was unacknowledged, but that the separation agreement, as an instrument, did not operate to deprive defendant of the right of election. (Matter of Hearn, 261 App. Div. 924, 925; affd., without opinion, 287 N. Y. 775. See, also, Matter of Colaci, 288 id. 158.) In the absence of an acknowledgment, the plaintiff cannot invoke an agreement to execute a waiver, which would accomplish by indirection a dispensation of the requirement of subdivision 9 of section 18 of the Decedent Estate Law. (Dung v. Parker, 52 N. Y. 494; Belmar Contracting Co. v. State of New York, 233 id. 189, 194.) Lazansky, P. J., Hagarty, Carswell, Johnston and Adel, JJ., concur.

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Bluebook (online)

264 A.D. 900, 35 N.Y.S.2d 821, 1942 N.Y. App. Div. LEXIS 5304, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kissling-v-hearn-nyappdiv-1942.

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