The estate of the deceased was primarily hable for the payment of the reasonable funeral expenses, and a preference is given to this indebtedness over all others as a debt of the estate. (Surr. Ct. Act, § 216; Dec. Est. Law, § 176.) If, however, the estate was insolvent or insufficient to pay reasonable funeral expenses, the widow is liable, provided she made an express promise or agreement to pay from her separate estate. (Hazard v. Potts, 40 Misc. 365.)
The plaintiff having made out a prima facie case on the defendant’s express promise to pay, it was error to dismiss the complaint at the close of plaintiff’s case. Judgment and order reversed and new trial ordered, with thirty dollars costs to appellant to abide the event.
All concur;• present, Lydon, Hammer and Frankenthaler, JJ.