Opinion
May 12, 1953.
Present — Peck, P.J., Dore, Callahan, Breitel and Bergan, JJ.
Whether the father of the decedent son is entitled to share in the death action depends on whether he had voluntarily abandoned or failed to support his family within the meaning of subdivision 2 of section 133 of the Decedent Estate Law. Since the death was in 1948, the amendment of 1949 to section 133, providing for distribution in proportion to pecuniary injuries suffered does not apply to this case. There is an issue between the mother and father whether the separation between them was due to the father's illness, or to an abandonment and that issue should be examined. Order unanimously reversed and the matter remitted to Special Term for a hearing on that issue, with costs to abide the event. Settle order on notice.