Opinion
Argued September 15, 1976
Decided October 19, 1976
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, MILLARD L. MIDONICK, S.
Nicholas R. Doman, William T. Livingston, II, and Michael S. Kraft for appellant.
John M. Hadlock, Donald P. Parson and Lawrence N. Chanen for Melvin Sunshine, respondent.
MEMORANDUM. Order affirmed, with costs to all parties filing briefs payable out of the estate.
The rule with respect to antenuptial agreements in this State places no special evidentiary or other burden on the party to the agreement, or one on his or her behalf, who seeks to sustain the agreement (see Matter of Davis, 20 N.Y.2d 70, 76; Matter of Phillips, 293 N.Y. 483, 491). Even if one allow credit, as one should, for the opportunities of the Trial Judge, whose conscientious analysis indicated that his responsibilities were carefully executed, this is the kind of case which offers no opportunity to discover the truths sealed on one side by death. Hence, the divided views in the Appellate Division are understandable and reasonable. On balance, this court accepts generally the factual version of the majority of the Appellate Division (Cohen and Karger, Powers of the New York Court of Appeals, § 112).
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur in memorandum.
Order affirmed, etc.