Peer v. Peer

¶1In our opinion a new trial is necessary in the interest of eliciting all of the facts — including testimony by the husband — on the issue of the existence or abandonment of the separation agreement. We do not find in the wife’s testimony alone — even if deemed denied by the husband who was not subjected to cross-examination — sufficient warrant for a finding that the separation agreement was not abandoned. A proper finding as to the abandonment of the agreement by the acts of the parties should be arrived at only after eliciting all of the facts based on the testimony of both parties. That is especially true here since plaintiff’s testimony made out a prima facie case of such abandonment. Concur — Rabin, J. P., Valente, McNally, Stevens and Eager, JJ. [20 Misc 2d 878.]