
    In the Matter of the Estate of Isaac Mindheim, Deceased. Samuel J. Mindheim, as Executor of Isaac Mindheim, Deceased, Respondent; Helena R. Mindheim, Appellant.
   Callahan, J.

(dissenting). The finding in the prior separation suit relied on as an estoppel to defeat the wife’s right to election under section 18 of the Decedent Estate Law was not necessary to the decision of the separation suit. For this reason, and because of the wife’s alleged offer of reconciliation after the suit was dismissed, the finding is not conclusive on the issue of an abandonment by the wife. (Silberstein v. Silberstein, 218 N. Y. 525.)

Although in this case, as distinguished from the Silberstein case (supra), there was some effort to plead abandonment by the wife as justification (see Civ. Prac. Act, § 1163), neither the defense as pleaded nor the finding in support thereof sufficiently sets forth such an abandonment.

The decree should be reversed and a new trial ordered on the merits of the issues concerning abandonment and the right to an election.

Martin, P. J., Townley, Wasservogel and Peck, JJ., concur in decision; Callahan, J., dissents in opinion.

Decree, and order so far as appealed from, affirmed, with costs. No opinion.  