Majority
Decree of the Surrogate’s Court of Kings county affirmed, with costs to respondent payable out of the estate. In our opinion it was error for the surrogate to exclude that part of the depósition of the first wife by which it was sought to prove that she had not instituted any action to annul or dissolve the marriage in Italy and had not received or been served with papers in such action. Upon the basis of that testimony, which this court receives out of her deposition on file in the Surrogate’s Court, and of other testimony in the case, we are of opinion that the presumption of the validity of the second marriage was overcome. Lazansky, P. J., Hagarty, Seeger and Seudder, JJ., concur; Kapper, J., dissents upon the ground that the presumption of the validity of the second marriage has not been overcome.