Opinion
March 25, 1942.
Present — Crosby, P.J., Taylor, Dowling, Harris and McCurn, JJ.
Decree reversed on the law, without costs of this appeal to any party, and a new trial granted. Memorandum: The burden of establishing abandonment rests upon the administrator. ( Matter of Green, 155 Misc. 641; affd., 246 App. Div. 583; Matter of Rechtschaffen, 278 N.Y. 336.) The abandonment contemplated by subdivision (d) of section 87 of the Decedent Estate Law is such an abandonment as would be sufficient under section 1161 of the Civil Practice Act to maintain a judgment for separation on that specific ground. It does not appear from the record before us that the judgment of separation was based upon an abandonment. There was no other evidence offered. There is not sufficient evidence in the record to support a finding of abandonment. All concur. (The decree denies distribution of decedent's estate to his widow in a proceeding to settle the accounts of an administrator.)