Opinion
May 20, 1968
In this action in which each plaintiff seeks to recover damages by reason of the breach of an oral promise made by defendant's intestate to leave to each plaintiff one third of his residuary estate in return for the separate promises of plaintiffs to continue working for and aiding decedent and his business, defendant appeals from a judgment of the Supreme Court, Nassau County, entered February 16, 1967 upon a jury verdict in favor of plaintiffs, and directing a hearing to determine the amount of each plaintiff's recovery. Judgment affirmed, with costs. The alleged oral agreements were made on several occasions before January, 1965. On January 10, 1965 the decedent in fact executed a writing purporting to leave each plaintiff one third of his residuary estate, but the writing was not admitted to probate as a will because it was executed without attesting witnesses. Each plaintiff testified as to the oral promise made by decedent to the other plaintiff. Assuming that the receipt of that testimony was in violation of CPLR 4519, it is our opinion that the receipt of that testimony was harmless error because there was adequate other proof of the agreements ( Hutton v. Smith, 175 N.Y. 375). Beldock, P.J., Christ, Benjamin, Munder and Martuscello, JJ., concur.