Fine v. Scheinhaus

• Decision Date: 03 January 1952
• Citation: 202 Misc. 272
• Parties: Marvin Fine, Plaintiff,<BR>v.<BR>Irving Scheinhaus et al., Defendants.
• Court: New York Supreme Court

202 Misc. 272

Marvin Fine, Plaintiff,

v.Irving Scheinhaus et al., Defendants.

January 3, 1952.

Mayer Koplovitz for defendants.

Eugene H. Klein for plaintiff.

SEARL, J.

The form of action for ejectment comes to our nation from the common law of England, in fact, it has been termed a "creature of Westminster Hall" (18 Am. Jur., Ejectment, § 4, p. 9). We find the English author, Runnington, had published in 1795 his work on the "Legal Remedy by Ejectment", in which he cites cases as early as 1676. So far as diligent search reveals, this is the first recorded case where one seeks legally to evict a mother-in-law.

The problem here posed only becomes difficult of solution because of the fact that title to a home located at 204 Scottholm Boulevard, Syracuse, is in the name of plaintiff and his wife, Selma Fine, one of the defendants. The ownership of the premises, referred to as being of the value of $40,000, is neither one in common, nor is it one known as a joint tenancy. It is a tenancy by the entirety. It is too well known to require comment that where property is conveyed to husband and wife, without qualification as to any other type of ownership, the title is inseverable. The husband owns the entire property subject to the possibility his wife may survive him. In turn, the wife owns the entire property subject to the possibility the husband may survive her. Upon the death of one, the survivor takes all. Both have the right of possession. A husband or wife may mortgage his or her interest. However, if one spouse dies a mortgagee of any interest of such deceased spouse in the property is without remedy, for the survivor takes clear from such mortgage, provided the survivor had not joined in the mortgage. One, without the other, cannot subject the property to an easement. (See Grassi v. Loweth, 130 Misc. 861.) This legal relationship binds real property owned by husband and wife closer together than are the bonds of marriage, which are only too frequently broken. When the marriage bonds are severed by legal action, the tenancy by entirety is likewise severed. Then the parties become owners or tenants in common and the property is then subject to partition.

The question naturally arises, who is entitled to possession and who is entitled to the rents accruing from the property where husband and wife own as tenants by the entirety? Beginning in the years 1848-1860 our Legislature commenced to appraise the rights of women. Even in these years before woman suffrage became a vital issue, the realization of the ability of woman to manage her own affairs commenced to permeate the legislative and civilian atmosphere. Before that time the use of and income from a wife's property, termed the "usufruct", went to the husband. The legislation passed during the years referred to was the so-called "Married Women's Acts" (L. 1848, ch. 200; L. 1849, ch. 375; L. 1860, ch. 90). The wife then became mistress of her own real estate. Thereby the wife was given the equal right of possession with her husband of real estate held by both as tenants by the entirety.

Had this action arisen prior to 1848, courts would have had no difficulty in promptly finding that the husband as lord of the house was master of his own castle and would have promptly given him the legal right to eject a mother-in-law or any other person whose presence was distasteful to him. Then he had the right of legal possession if he claimed he had been ousted. If the premises now involved were a business block or apartment house, no serious question would be presented. As husband and wife both are now entitled to possession, the court could readily solve the difficulty by dividing the rents equally. On the other hand, when one attempts to divide the possession of a one-family dwelling house, a home, a real obstacle is presented. The court must then consider the applicability of the phrase that no house is large enough for two families. Individual eccentricities will crop out. The husband may claim, justly or unjustly, that the mother-in-law has used all the hot water so that he cannot shave. Many ills are fancied. The mother-in-law may be the most kindly and retiring woman in the world, yet her very presence in the household may prove an itch to the husband.

As to instant Motion No. 1, whereby defendants seek to dismiss plaintiff's complaint as failing to state facts sufficient to constitute a cause of action, the motion must be denied as to the first alleged cause of action for eviction, for the following reasons: Section 1004 of the Civil Practice Act provides: "Where the action is brought by a tenant in common or a joint tenant against his co-tenant, the plaintiff, besides proving his right, must also prove that the defendant actually ousted him or did some other act amounting to a total denial of his right."

Although this provision does not include the expression "tenants by the entirety", yet it refers to the rights of co-tenants.

It may be that the Legislature never contemplated that a husband would dare to oppose his wife to the extent of actually attempting to eject a mother-in-law. In the instant case the husband cannot succeed unless he proves actually or inferentially that his wife and mother-in-law have ousted him of possession. The complaint contains the allegation "That the plaintiff is denied possession". As plaintiff is entitled on a motion of this type to the most favorable inference that can be drawn from the language of the complaint, it is apparent that the motion as to the first alleged cause of action must be denied. Whether plaintiff can produce proof to sustain this claim is another matter.

The second alleged cause of action is to effect that the presence of the mother-in-law has brought about "a marital rift between plaintiff, his wife and their son." The complaint further alleges that the husband has been compelled to undergo unusual expense by way of medical and other expenses for his son; that plaintiff was caused mental anguish, loss of sleep, appetite, and earnings. A demand is made for judgment resulting from these damages of $25,000 against his wife and mother-in-law.

It is unnecessary to elaborate upon this claim in the complaint. It must be stricken out. Prior to 1937 our courts held that neither a husband nor wife could successfully pursue a claim for money damages against the other arising out of slander, assault and battery, or other tort. (Freethy v. Freethy, 42 Barb. 641; Longendyke v. Longendyke, 44 Barb. 366.) The reasoning there was that such types of action were fraught with disastrous consequences to domestic peace and concord. By chapter 669 of the Laws of 1937, our Legislature removed this restriction. A married woman, and conversely, a married man, now has a right of action against the other spouse for injury to person, property, or character, covering any "personal injury" as defined by section 37-a of the General Construction Law. Such definition includes "libel, slander and malicious prosecution"; also "assault, battery, false imprisonment, or other actionable injury".

Even with the limitation removed one can scarcely envision the presence of a mother-in-law as constituting a causal relation for medical expense. If every act by husband or wife that might be distasteful to the other marital partner were cause for a damage suit, our already crowded courts might well be incapable of bearing the burden.

What precedent one may ask is there for this court holding that a cause of action is alleged in the first count of the complaint?

Although no reported case can be found in which a suitor has sought to question the legal right of a mother-in-law to reside in the home of her daughter and son-in-law, still the broad question of possession and ouster is not without precedent. We find the case of Finnegan v. Humes ...