Hawthorne v. Hawthorne

• Decision Date: 24 May 1960
• Citation: 24 Misc.2d 508,208 N.Y.S.2d 79
• Parties: Edith HAWTHORNE, of R. D. Middleville, New York, Plaintiff, v. Wilson HAWTHORNE, of R. D. Middleville, New York, and Elsie Fenner, of Newport, Defendants.
• Court: New York Supreme Court

Page 79

208 N.Y.S.2d 79

24 Misc.2d 508

Edith HAWTHORNE, of R. D. Middleville, New York, Plaintiff, v. Wilson HAWTHORNE, of R. D. Middleville, New York, and Elsie Fenner, of Newport, Defendants.

Supreme Court, Herkimer County.

May 24, 1960.

Philip D. O'Donnell, Herkimer, for plaintiff.

Cristman & Daly, Herkimer, for defendant Wilson Hawthorne. JOHN H. FARNHAM, Justice.

Defendant moves to dismiss plaintiff's complaint on the grounds that it fails to state facts sufficient to constitute a cause of action. The plaintiff and defendant, wife and husband respectively, were owners as tenants by the entirety of certain real property with improvements thereon located at R. D. Middleville, New York. They also were owners and holders of a standard fire insurance policy issued by Niagara Fire Insurance Company, Policy No. 5135. It appears that the said policy of fire insurance was in full force and effect when fire occurred on the said premises of the designated parties, wherein and whereby the dwelling house on said premises was totally destroyed. Plaintiff and defendant wife have been separated for some time.

The defendant, Elsie Fenner, is a mortgagee holding a mortgage on the said premises. A short time after the fire, the plaintiff and defendants made and executed their notice of claim to the fire insurance company for the sum of $12,500, which was the total insurance in effect upon said destroyed premises under said policy. Some time thereafter the said insurance company issued its draft payable to William Hawthorne, Edith Hawthorne and Elsie Fenner, they being all of the parties in their named capacities to this action, and as the apparent assureds in such capacities under the policy.

Now it appears that the defendant husband refuses to endorse the check and plaintiff has brought this action seeking injunctive and other relief.

The basic and main question at issue is the disposition and ownership of the proceeds of the said insurance company check in the amount of $12,500.

The defendant contends on this motion by way of his memorandum that the proceeds of the insurance check stand in the place and stead of the subject matter of the insurance policy which was the dwelling house in question and the question immediately, therefore, is raised as to whether one tenant by the entirety as a matter of right can claim half the proceeds of a fire insurance settlement resulting when a part of the tenancy is destroyed by fire. This being so, it is obvious that the entirety as to that portion of the tenancy destroys the right of survivorship. Counsel has stated that apparently this situation is one of first impression in our state, and the Court inclines such a possible situation. There are cases, however, in numbers which may resolve our situation by analogy, some of which are helpful. The related cases do not seem to be uniform or imminently clear. However, this Court believes that the basic rule in New York appears to be that where a tenancy by the entirety exists, it cannot be destroyed by an 'involuntary conversion', such as obviously exists in the instant case. This has been held to be the rule in mortgage foreclosure proceedings. Germania Savings Bank v. Jung Sup., 18 N.Y.S. 709; Stretz v. Zolkoski, 118 Misc. 806, 195 N.Y.S. 46. Also the same rule seems to obtain with reference to awards made in condemnation cases. Re Jamaica Bay, Borough of Brooklyn and Queens, City of New York, 252 App.Div. 103, 297 N.Y.S. 415.

The Court is aware of the rule enunciated in the case of Franklin Square National Bank v. Schiller, 202 Misc. 576, 119 N.Y.S.2d 291. It believes, however, that that case is against the weight of authority in New York State. While the tenancy here technically may not be one of entirety, it is so constructively and will...