Opinion
December 18, 1959
Appeal from the Municipal Court of the City of New York, Borough of Queens, HERMAN C. STOUTE, J.
Fred Noz for appellant.
No one appearing for respondent.
The dismissal of the defendant's first affirmative defense was error prejudicial to defendant's case. In view of the confidential relationship of the parties, oral evidence was admissible on the question whether, at the time the note was executed, the plaintiff wife agreed to be jointly liable thereon ( Matter of Faigelman, 142 Misc. 167; cf. Foreman v. Foreman, 251 N.Y. 237); and this question was one of fact for the jury to pass upon.
The judgment should be unanimously reversed on the law and facts and a new trial ordered, with $30 costs to defendant to abide the event.
Concur — PETTE, DI GIOVANNA and BROWN, JJ.
Judgment reversed, etc.