Albin v. Albin
| Decision Date | 05 October 1960 |
| Parties | Rose ALBIN v. Michael B. ALBIN. |
| Court | New York Supreme Court |
Burton G. Rudnick, Brooklyn, for plaintiff.
Harry Gittleson, Brooklyn, for defendant, for the motion.
Motion by the defendant for an order directing summary judgment in his favor pursuant to Rule 113 of the Rules of Civil Practice denied, and summary judgment granted in favor of the plaintiff against the defendant for a partition and division of the real property set forth in the complaint.
This is an action for the partition of real property located in the Borough of Brooklyn. The property in question was purchased by the parties hereto in 1951 as tenants by the entirety at which time a valid marriage subsisted between them. On July 24, 1956 the parties entered into a separation agreement under the terms of which they agreed to live separate and apart and certain provisions were made for the support of the plaintiff and her three children. The agreement contains 24 paragraphs and is 14 pages in length. A reading of the agreement leaves no doubt that the parties carefully and minutely settled both their marital and financial differences. The agreement is detailed as to the moneys and other securities given to the plaintiff-wife and is also explicit as to the defendant's obligation to support his wife and children.
The provisions of paragraphs '12', '13' and '21' of the agreement are determinative of the issues on the present application. They read as follows:
'12. The Wife and Husband are mutual owners by the entirety of premises 870 Ocean Avenue, Brooklyn, New York, where the Husband also maintains an office for the practice of medicine, upon which there was a mortgage of $20,000.00, which has now been reduced to approximately $14,000.00. The Husband agrees to maintain said premises and to pay all taxes, insurance, carrying charges for the house, gardening expenses, etc., and to keep the house in repair; and in the event that at any time in the future, any income should accrue from a tenant in the house or otherwise, over and above the carrying charges, the Husband agreed that such profit shall be shared equally between the Husband and the Wife. Both parties hereby agree that they will not unreasonably withhold their consent to the sale of the said premises, in the event a purchaser for the property can be obtained, and offers a fair and reasonable price, and each of the parties hereby agrees to execute a deed, release or any other instrument or paper necessary to effect the sale of the said premises, provided, however, that the Husband decides to vacate his medical office at such time. However, he is under no obligation to do so.
'13. It is further agreed that in the event that the Wife or Husband institutes an action for absolute divorce in any jurisdiction, the Judge or Referee presiding in such action and hearing the evidence therein, may be apprised of the execution of this agreement; and each of the parties to this agreement hereby further consents that the provisions herein agreed upon, shall be incorporated and be made a part of any interlocutory or final decree of absolute divorce; and each of the parties hereto further agrees to sign, execute and deliver to the other, upon demand, and without any costs, any agreement or instrument which may be required to effectuate the purposes of this agreement, and it is expressly agreed between the parties hereto, that this agreement and each and every provision thereof, shall survive any such action for divorce, and shall be forever binding and conclusive on the parties hereto.
* * *
* * *
It further appears that plaintiff was granted a final and absolute decree of divorce against the defendant in or about July 1956 in the Republic of Mexico and that the separation agreement heretofore referred to was incorporated in that decree.
The defendant in support of his motion for summary judgment asserts that the action for partition brought by the plaintiff is premature in that no person, firm or corporation has made a fair and reasonable offer to purchase the premises, and no demand was made to execute a deed. Defendant further asserts that he is still engaged in the practice of his profession of medicine and maintains his medical office at the subject premises and that therefore under the terms of the agreement he is under no obligation to consent to a sale. Defendant further claims that it therefore follows that if he is not obliged to sell, no action for partition may be instituted.
There is no claim made by the defendant contesting the validity of the Mexican...
To continue reading
Request your trial
-
Huber v. Huber
...216, 276 N .Y.S. 960; Melchers v. Bertolido, 118 Misc. 196, 192 N.Y.S. 781; Tippen v. King, 187 Misc. 150, 61 N.Y.S.2d 298; Albin v. Albin, Sup., 208 N.Y.S.2d 252) were foreign divorces involved. In Grigoleit it was held without discussion that, as concerns the effect of divorce on a tenanc......
-
Radcliffe v. Radcliffe
...that a party may not be deprived of a property right by a foreign court lacking personal jurisdiction would not apply (Albin v. Albin, 26 Misc.2d 383, 208 N.Y.S.2d 252, aff'd, 12 A.D.2d 933, 212 N.Y.S.2d 725 (2nd Dep't 1961); Topilow v. Peltz, 43 Misc.2d 947, 252 N.Y.S.2d 530, aff'd 25 A.D.......
-
Ripp v. Ripp
...953; affd. 6 N.Y.2d 827, 188 N.Y.S.2d 215), albeit the agreement or restriction must be for a reasonable duration (Albin v. Albin, 26 Misc.2d 383, 208 N.Y.S.2d 252, affd. 12 A.D.2d 933, 212 N.Y.S.2d 725; Casolo v. Nardella, 193 Misc. 378, 84 N.Y.S.2d 178, affd. 275 App.Div. 502, 90 N.Y.S.2d......
-
Kraus v. Huelsman
...by the foreign divorce; and plaintiff's action in partition may not be maintained. The plaintiff places reliance on Albin v. Albin, 26 Misc.2d 383, 385, 208 N.Y.S.2d 252, affd. 12 A.D.2d 933, 212 N.Y.S.2d 725 and on Topilow v. Peltz, 25 A.D.2d 874, 270 N.Y.S.2d 116. In both those cases, how......