| N.Y. App. Div. | Apr 15, 1923
Order of the Surrogate’s Court of Kings county, dismissing objections to will, affirmed, without costs, upon the opinion of the surrogate. [Matter of Hagen, 119 Misc. 770" date_filed="1922-12-15" court="N.Y. Sur. Ct." case_name="In re Schweizer">119 Misc. Rep. 770.] As to the validity of the separation agreement, it was valid on its face and duly executed by the husband and wife, under seal, and acknowledged before a notary public. The learned counsel for appellant filed an affidavit before the surrogate in opposition to the motion, in which he stated: “ This Court-is not asked to decide as to the validity of the agreement so we shall regard the agreement as valid.” In view of this, we are unable to perceive how it can be claimed that the surrogate’s decision that it was valid can be said to be “ purely arbitrary,” or that he determined the motion without “ one iota of evidence or proof as to the validity of the agreement.” There was no answer to the allegation that the agreement was made and executed; its validity was conceded. For some reason, the order appealed from does not recite the affidavit read in opposition to the motion; and, pursuant to Civil Practice Act, section 111, this court directs that the order be amended by adding after the words “ Schedule A ” the words “ and on reading and fifing the affidavit of Fred M. Ahern, verified October 6th, 1922, in opposition to the motion.” Kelly, P. J., Maiming, Kelby, Young and Kapper, JJ., concur.