Opinion
April 1, 1938.
Decree of the Surrogate's Court of Queens county reversed on the law and the facts, with costs to appellant, payable out of the estate, proceeding dismissed, with costs, so payable, and matter remitted to the Surrogate's Court to enter a decree accordingly. The determination that the wife abandoned the husband is contrary to the evidence. The proof preponderates favorably to a holding that husband and wife voluntarily separated and were satisfied to live apart. The wife has not lost her right of election. Lazansky, P.J., Carswell, Davis, Adel and Close, JJ., concur.