The dismissal of the defendant’s first affirmative defense was error prejudicial to defendant’s case. In view of the confidential relationship of the parties, oral evidence was admissible on the question whether, at the time the note was executed, the plaintiff wife agreed to be jointly liable thereon (Matter of Faigelman, 142 Misc. 167; cf. Foreman v. Foreman, *258251 N. Y. 237); and this question was one of fact for the jury to pass upon.
The judgment should be unanimously reversed on the law and facts and a new trial ordered, with $30 costs to d ffendant to abide the event.
Concur — Pettb, Di Giovanna and Brown, JJ.
Judgment reversed, etc.