Tausik v. Tausik

• Decision Date: 19 January 1961
• Citation: 9 N.Y.2d 664,173 N.E.2d 51,212 N.Y.S.2d 76
• Parties: , 173 N.E.2d 51 Adolph TAUSIK, Respondent, v. Helen Tuck TAUSIK, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 76

212 N.Y.S.2d 76

9 N.Y.2d 664, 173 N.E.2d 51

Adolph TAUSIK, Respondent, v. Helen Tuck TAUSIK, Appellant.

Court of Appeals of New York.

Jan. 19, 1961.

Appeal from Supreme Court, Appellate Division, First Department, 11 A.D.2d 144, 202 N.Y.S.2d 82.

Husband brought summary proceeding against wife to recover possession of apartment, in which husband agreed that wife could live for two months following separation.

The Municipal Court of the City of New York, Borough of Manhattan, Ninth District, Guy Gilbert Ribaudo, J., 19 Misc.2d 825, 187 N.Y.S.2d 86, rendered an order in favor of the husband, and the wife appealed.

The Supreme Court, Appellate Term, First Department, 21 Misc.2d 599, 200 N.Y.S.2d 543, affirmed final order, and dismissed appeal from order modifying stay, and held that wife's choice of an apartment owned by husband, as her temporary abode following her decision to leave him, did not entitle her to possession of such apartment as of right, and that at expiration of two-month period during which she was given permission by husband to stay in the apartment, and on notice to quit, she was a trespasser, and that husband could maintain summary proceeding to obtain possession, even though there was no final separation of the parties through judicial decree or formal agreement. Hofstadter, J., dissented.

The wife appealed.

The Supreme Court, Appellate Division, First Department, 11 A.D.2d 144, 202 N.Y.S.2d 82, affirmed the determination of the Appellate Term and held that on wife's refusal to quit following husband's notice, husband could maintain summary proceeding to obtain possession. McNally and Rabin, JJ., dissented.

The wife appealed to the Court of Appeals, and motion was made in the Court of Appeals to have the appeal heard on five copies of the record before the Appellate Division.

The Court of Appeals, 8 N.Y.2d 1084, 207 N.Y.S.2d 461, granted motion to have the appeal heard on five copies of the record before the Appellate Division.

A motion was made in the Court of Appeals to strike certain matter from the brief of the respondent-husband.

Order affirmed, without costs.

Motion to strike certain matter from the brief of the respondent on the appeal herein granted upon the ground that the subsequent judgment in the separation action was not considered below and is unnecessary to the result reached.

All concur.