
    Joseph P. Kissling, Executor, etc., of Cathleen G. Hearn, Deceased, Respondent, v. William G. Hearn, Appellant.
   Action for judgment directing defendant to perform specifically a separation agreement by executing and delivering a valid waiver of the right of election to take against the probated will of plaintiff’s testatrix. Order denying motion of defendant tc dismiss the complaint under rule 113 of the Rules of Civil Practice reversed on the law, with ten dollars costs and disbursements, and the motion granted, without costs. Appeal from order denying defendant’s motion for judgment on the pleadings dismissing the complaint dismissed, without costs, in the light of the foregoing determination. The defense of res judicata is established, On the prior appeal it was determined not only that the waiver provision was ineffective because it was unacknowledged, but that the separation agreement, as an instrument, did not operate to deprive defendant of the right of election. (Matter of Hearn, 261 App. Div. 924, 925; affd., without opinion, 287 N. Y. 775. See, also, Matter of Colaci, 288 id. 158.) In the absence of an acknowledgment, the plaintiff cannot invoke an agreement to execute a waiver, which would accomplish by indirection a dispensation of the requirement of subdivision 9 of section 18 of the Decedent Estate Law. (Dung v. Parker, 52 N. Y. 494; Belmar Contracting Co. v. State of New York, 233 id. 189, 194.) Lazansky, P. J., Hagarty, Carswell, Johnston and Adel, JJ., concur.  