Mayeri v. Mayeri

• Decision Date: 09 November 1960
• Citation: 208 N.Y.S.2d 44,26 Misc.2d 6
• Parties: Josephine MAYERI, Plaintiff, v. Aflaton R. MAYERI, Defendant.
• Court: New York Supreme Court

Page 44

208 N.Y.S.2d 44

26 Misc.2d 6

Josephine MAYERI, Plaintiff, v. Aflaton R. MAYERI, Defendant.

Supreme Court, Special Term, Nassau County, Part I.

Nov. 9, 1960.

Nathaniel Taylor, Mineola, for plaintiff.

Isaac Kellner, New York City, for defendant.

BERNARD S. MEYER, Justice.

May Special Term order a husband to vacate premises owned by his wife pending trial of an action for separation grounded on acts of physical violence? Mr. Justice Gulotta has recently held, in Budowsky v. Budowsky, 24 Misc.2d 137, 201 N.Y.S.2d 627, 628, that 'The court's power to protect the health and safety of the wife and children is as broad as the exigencies of the situation call for,' but defendant husband argues that matrimonial jurisdiction being purely statutory and there being no statute authorizing the requested order, the court is without power to grant it. Goodwin v. Goodwin, 172 Misc. 118, 13 N.Y.S.2d 894, and Lieblich v. Lieblich, 18 Misc.2d 798, 164 N.Y.S.2d 179 hold, respectively, that neither by temporary order nor after judgment of separation may an order issue directing the husband to leave the matrimonial domicile. Both cases consider the question as one of power under the sections of the Civil Practice Act dealing with matrimonial actions; neither discussed Civil Practice Act, § 878 as a source of power nor considered the effect of acts of violence on the holding made. The court concludes that in view of the acts of violence detailed by the wife and corroborated by affidavits of oth ers, it has and should exercise the power to exclude the husband from residing in the premises owned by the wife.

A spouse owning property individually apparently may not maintain a summary proceeding because the non-owner spouse's possession originated legally, Brooks v. Brooks, 146 Misc. 335, 261 N.Y.S. 211; Goodwin v. Goodwin, supra; Mele v. Russo, 168 Misc. 760, 9 N.Y.S.2d 203; Cipperly v. Cipperly, 104 Misc. 434, 172 N.Y.S. 351; Wright v. Wright, 188 Misc. 268, 67 N.Y.S.2d 63, although a question may be raised whether the final clause of C.P.A. § 1411, subd. 4, does not authorize such a proceeding after formal notice of revocation. Whether summary proceedings may be maintained or not, ejectment clearly is a proper remedy between spouses, Wood v. Wood, 83 N.Y. 575, and it would appear, an action in ejectment could be joined in the same complaint with (C.P.A. *46s 258) or consolidated with (C.P.A. §§ 96, 97) the action for separation. Such a cause of action would furnish the basis for issuance of a temporary injunction under C.P.A. § 877.

In the absence of such a cause of action, what is the court's authority? The Appellate Division, Third Department, held in Cox v. Cox, 266 App.Div. 38, 43 N.Y.S.2d 707, that no order could be made in a matrimonial proceeding excluding one tenant by the entirety from the matrimonial residence notwithstanding the granting of a divorce. The court considered C.P.A. § 1170 and concluded that it did not grant the necessary authority and stated further that there was 'no statute or judicial decision that would warrant the adjudication of a real property right in a matrimonial action,' Ibid ., 266 App.Div. at page 40, 43 N.Y.S.2d at page 708. In Basch v. Basch, 278 App.Div. 734, 103 N.Y.S.2d 60, the same court restated that rule but intimated that a temporary order might be on a different footing.

In the Second Department, there developed a rule that payment by the husband of carrying charges on a house owned by plaintiff wife (Cohn v. Cohn, 246 App.Div. 537, 282 N.Y.S. 494) or on premises jointly owned (Lampert v. Lampert, 268 App.Div. 920, 51 N.Y.S.2d 343) should not be ordered, the wife being sufficiently protected by her right to move for increased alimony if forced to vacate by foreclosure. Donnelly v. Donnelly, 272 App.Div. 779, 69 N.Y.S.2d 651, relying on the Third Department's decision in Cox v. Cox, supra, held that a husband could not be ordered to remove from or transfer possession of a rented family home, but modified the rule of Cohn v. Cohn, supra, to the extent of approving an order requiring the husband to pay the rent for the home, and recognized that if he failed to do so, or continued to reside in the premises, plaintiff might apply for additional alimony sufficient to pay the rent or obtain and maintain separate living quarters. The rule of the Donnelly case has been applied to an apartment occupied by the spouses in a three-family home owned by them as tenants by the entirety, Spletzer v. Spletzer, 200 Misc. 614, 618, 110 N.Y.S.2d 235, 238, to a rented apartment, Barrone v. Barrone, N.Y.L.J., 1/29/47, p. 400, col. 7 (Froessel, J.); Klein v. Klein, Sup., 202 N.Y.S.2d 938, and in Appelbaum v. Appelbaum, Sup., 81 N.Y.S.2d 580, in which the decision does not indicate the ownership of the residence involved.

The First Department, on the other hand, held in Garson v. Garson, 271 App.Div. 961, 67 N.Y.S.2d 680, that C.P.A. § 1170 authorizes the making of an order directing a husband to remove from the apartment in which the parties had been residing, and that decision was followed in Lindley v. Lindley, Sup., 162 N.Y.S.2d 217, 222.

In the face of these divergent views, the Legislature on recommendation of the Law Revision Commission enacted Chapter 698 of the Laws of 1953 adding § 1164-a to the Civil Practice Act. The Commission's report (1953 Law Revision Commission Report 481, 486), in apparent explanation of the limitation of the statute to separation actions, noted that under the rule of Stelz v. Shreck, 128 N.Y. 263, 28 N.E. 510, 13 L.R.A. 325, divorce transmuted a tenancy by entirety into a tenancy in...