Brennecke v. Smith

• Decision Date: 11 May 1964
• Parties: In the Matter of Summary Proceedings by Vivian D. BRENNECKE, Petitioner- Appellant, v. William K. SMITH, Respondent-Respondent.
• Court: New York County Court

Page 602

249 N.Y.S.2d 602

42 Misc.2d 935

In the Matter of Summary Proceedings by Vivian D. BRENNECKE Petitioner- Appellant, v. William K. SMITH, Respondent-Respondent.

Westchester County Court.

May 11, 1964.

Cribari, Scapolito & Solinger, Mount Vernon, for respondent-respondent.

Gilleran & Spring, White Plains, for petitioner-appellant.

ROBERT J. TRAINOR, Justice.

This is an appeal by the petitioner from a final order of the Justice's Court, Town of Pelham, which dismissed a summary proceeding wherein the petitioner, as the alleged owner of the premises, sought to evict the respondent from said premises on the ground that the respondent was a mere licensee thereof whose license had been terminated. This is the second time the matter has been before this court on appeal. On the first occasion the Justice of the Peace had issued a final order awarding possession of the premises to the petitioner. That order was reversed for the reason that the nature of the occupancy of the respondent had not been established at the trial, and a new trial was ordered. The new trial resulted in the order referred to in the opening paragraph hereof.

William K. Smith, the respondent, and Margaret Cannon Smith were married on June 15, 1940. In 1948, after two children had been born to the couple, the respondent purchased the single family dwelling at 658 Timpson Avenue, Pelham, New York, where two more children were born, making a total of four. In June of 1952, for some reason not disclosed in the record, the respondent invested his wife with title to the matrimonial domicile. What the consideration for this conveyance was, if any, does not appear. Sometime within the next ten years difficulties arose between the husband and wife which, according to the record, had some connection with the wife's drinking and resulted in her hospitalization on one or more occasions.

Despite the fact that the wife frequently left the matrimonial abode, commencing in May, 1961, for varying periods of time, she never completely removed all of her personal possessions. According to her testimony at the trial she was 'in and out' of the house (smp. 16) between May of 1961 and February of 1963. During each of her absence from home, the four children continued to reside with the husband, as they still do.

The Petitioner herein, Vivian D. Brennecke, had been a friend of Margaret Cannon Smith for a period of about eighteen years, or since about 1945. She knew the family status of Mrs. Smith, as a mother and wife, and knew of the matrimonial difficulties the Smiths were having and, probably, the principal reason therefor.

On February 21, 1963, at a time when a mortgage on the matrimonial domicile was threatened with foreclosure, or was actually in process of foreclosure, Vivian D. Brennecke, the petitioner herein, paid off the mortgage and, in lieu of a satisfaction, took an assignment of the mortgage. Within a week thereafter and on February 27, 1963, Margaret Cannon Smith conveyed the mortgaged premises to the petitioner for a purported total consideration of $5,000.00, which was paid $500.00 at the closing, and $4,500.00 by the execution and delivery by the petitioner to Mrs. Smith of five promissory notes bearing interest at 4% per annum, one for $500.00 payable in August, 1963; one for $1,000.00 payable in November, 1963; one for $1,000.00 payable in February, 1964; one for $1,000.00 payable in May, 1964; and the final one for $1,000.00 payable in August, 1964. These notes were initially left in the custody of petitioner's attorney. Later, it is said, they were delivered to Mrs. Smith. According to the proof, none of these has been paid. At the time of the alleged conveyance, the petitioner was fully aware of the fact that the premises were occupied by the husband and four children of her grantor. Assuming that the grantor had told the petitioner that the respondent was a tenant, or a squatter, or a mere licensee of the premises, did she make any inquiry of the true nature of the occupancy so as to constitute her a bona fide purchaser for value without notice of infirmities? Apparently she did not. 'In other words, where a purchaser of land has knowledge of any facts sufficient to put him on inquiry as to the existence of some right or some title in conflict with that which he is about to acquire, he is presumed either to have made the inquiry and ascertained the extent of such prior right, or to have been guilty of a degree of negligence equally fatal to his claim to be considered a bona fide purchaser'. Rasch, Real Property Law and Practice (1962) Section 1316. Of course, even if she made such inquiry, it could not have changed the nature of the occupancy.

The question which is squarely presented here is: Under the facts stated is the occupancy of the husband that of a mere licensee? I feel that this must be resolved upon its own facts and not by seeking to squeeze it into the mould of certain cases recited in the briefs submitted, i. e., Tausik v. Tausik; Cheek v. Salkind; Cardosanto v. Cardosanto (infra).

In Cheek v. Salkind, 28 Misc.2d 828, 214 N.Y.S.2d 83, the grantor of the husband of the respondent-wife succeeded in removing the wife by summary proceedings. In that case it was proved that the husband and wife were legally separated under a judicial decree. Among other things the decree made certain provisions for payments by the husband and occupancy of the premises by the wife, as long as the husband owned said premises. Upon learning that the husband contemplated selling the premises the wife sought an order from the court enjoining the sale which application was denied. The petitioner took title and, after proper notice, evicted the wife as a licensee. All this case held was: '* * * a wife in possession under a judicial decree of separation providing that her right of occupancy is dependent upon her husband's ownership is a licensee within the ambit of subdivision 8 of section 1411 of the Civil Practice Act, and that summary proceedings lie by the purchaser-petitioner.' Page 830 of 28 Misc.2d p. 86 of 214 N.Y.S.2d.

In Cardosanto, 15 Misc.2d 1001, 186 N.Y.S.2d 331, the owner-petitioner married Lamberto Cardosanto in 192...