Boehringer v. Schmid

• Decision Date: 14 October 1930
• Citation: 254 N.Y. 355,173 N.E. 220
• Parties: BOEHRINGER et al. v. SCHMID et al.
• Court: New York Court of Appeals Court of Appeals

254 N.Y. 355

173 N.E. 220

BOEHRINGER et al.

v.SCHMID et al.

Court of Appeals of New York.

Oct. 14, 1930.

Action by Margaret Boehringer and others against Edwin Schmid and others. From a judgment of the Appellate Division, Fourth Department (228 App. Div. 881, 239 N. Y. S. 922) affirming a judgment of the Special Term dismissing the complaint (133 Misc. Rep. 236, 232 N. Y. S. 360), plaintiffs appeal.

Affirmed.

Appeal from Supreme Court, Appellate Division, Fourth department.

Frank C. Brendel for appellants.

George B. Doyle for respondents.

PER CURIAM.

Matter of Klatzl's Estate, 216 N. Y. 83, 110 N. E. 181, must be regarded as conclusively holding that ‘the creation of a tenancy by the entirety is permitted by law and a husband may by conveyance to himself and his wife create such a tenancy, thereby reserving to himself the same rights he would have under a deed from a third person.’ Although Bartlett, C. J., concurred, in result only, in the opinion of Seabury, J., he said: ‘* * * I see no reason why the husband could not convey to his wife such an estate as she would get by a similar deed to them from a third person, and at the same time reserve for himself the same rights he would have under such a deed.’ This must be taken as a concurrence in the rule, if not in the reasoning of Judge Collin's opinion on this point.

The judgment should be affirmed, with costs.

CARDOZO, C. J., and POUND, CRANE, KELLOGG, O'BRIEN, and HUBBS, JJ., concur.

LEHMAN, J., not sitting.

Judgment affirmed.