Opinion
November 15, 1989
Appeal from the Cayuga County Surrogate's Court, Contiguglia, S.
Present — Dillon, P.J., Green, Pine, Balio and Davis, JJ.
Judgment unanimously affirmed without costs. Memorandum: The trial court properly permitted respondent Carl Smith to testify about a conversation with the deceased in which she told him that she intended to give respondent Joanne Smith a gift of funds from a savings account. The testimony was not barred by the Dead Man's Statute because there was no showing that Mr. Smith was "a person interested in the event" (CPLR 4519). A spouse of an interested party is not necessarily disqualified from testifying against the estate (see, Laka v Krystek, 261 N.Y. 126, 130; Matter of Mead, 129 A.D.2d 1008, lv denied 70 N.Y.2d 609). On this record the deposit of the funds in a joint savings account did not establish that Mr. Smith was an interested party within the meaning of the statute because it was done for convenience (see, Matter of Friedman, 104 A.D.2d 366, 367, affd 64 N.Y.2d 743). Moreover, there was no proof that Mr. Smith received any money from the account during the period it was jointly held. Thus, petitioner failed to establish that Mr. Smith had a present, certain and vested interest in the event (see, Friedrich v Martin, 294 N.Y. 588, 595). The court's finding that decedent intended the money as a gift, based upon Mr. Smith's testimony, is supported by the evidence and the court's conclusion that the assets did not constitute part of the estate must be affirmed.