Tausik v. Tausik

• Decision Date: 04 April 1960
• Parties: Adolph TAUSIK, Landlord-Respondent, v. Helen Tuck TRUSIK, Lecensee-Appellant.
• Court: New York Supreme Court — Appellate Term

Page 543

200 N.Y.S.2d 543

21 Misc.2d 599

Adolph TAUSIK, Landlord-Respondent, v. Helen Tuck TRUSIK, Lecensee-Appellant.

Supreme Court, Appellate Term, First Department.

April 4, 1960.

Bonom & Wolfson, Brooklyn, Meyer Kraushaar, New York City, and Philip Wolfson, Brooklyn, of counsel, for respondent. Goldstone & Wolff, Sidney A. Wolff, New York City, and Joseph F. Seminara, Brooklyn, of counsel, for appellant.

Before HOFSTADTER, J. P., and AURELIO and TILZER, JJ.

PER CURIAM.

The refusal of our courts to entertain summary proceedings against a refractory spouse, trespasser though she may be (see cases cited in dissenting opinion; Law Revision Report for 1951, Legislative Document (1951) No. 65, page 65), was one of the reasons which led the Legislature to add Subdivision 8 to Section 1411 Civil Practice Act, affording to the 'spouse with the legal right to possession' the simple and speedy relief of summary proceedings where 'the husband and wife separate' (Legislative Document (1951) No. 65, at pages 50, 65). The availability of the remedy provided by Subdivision 8 is not limited to a case of a 'finalized separation through judicial decree or formal agreement'. It was the clear intent of the Legislature to extend the summary remedy to those who have placed themselves in a licensor- licensee relationship. That any other legal relationship might also exist between such persons is immaterial. With respect to married couples not living together, to have the remedy depend on the formality of their separate status would be manifestly unfair and contrary to the statutory purpose. All that should be necessary is the establishment of the right to possession by one party and the duty to vacate by the other. To otherwise construe the statute would be to empower the Municipal Court to decide all manner of collateral issues outside its jurisdiction and foreign to the concept of the special proceeding. Questions of rights to marital abode, of abandonment of a spouse, of support and maintenance and of a place to live, are problems for solution in a court of plenary jurisdiction and are not to be solved in a summary proceeding.

We are not concerned, in any event, with parties who have not actually separated themselves. The petitioner husband is the owner of a proprietary lease of the apartment in suit. His wife, the appellant, decided that she would have to live apart. Rather than reside in her husband's second apartment or in her own third apartment, she sought and obtained permission from him to stay in the co-operative apartment for a period of two months, her husband at her request moving to his other residence. The wife's choice of the co-operative apartment owned by her husband as her temporary abode following her decision to leave him, did not entitle her to possession of such apartment as of right. At the expiration of the two-month period, upon notice to quit, she was a trespasser. Prior to the enactment of Subdivision 8 of Civil Practice Act, § 1411, she could not be ousted except by an action in ejectment. The law now provides that this slow and expensive ejectment action, in fact, for practical purposes no remedy at all (Legislative Document No 65, supra, at page 50), is not required 'When the husband and wife separate'. In this specific situation the law has provided a new remedy to the spouse with a legal right to possession--a summary proceeding (Cardosanto v. Cardosanto, 10 Misc.2d 302, 172 N.Y.S.2d 684, reversed 15 Misc.2d 1001, 186 N.Y.S.2d 331).

Final order affirmed, with $25 costs.

Appeal from order dismissed.

AURELIO and TILZER, JJ., concur.

HOFSTADTER, Justice (dissenting).

I dissent. I fear the disastrous effect of affirmance as precedent. It holds a potential of mischief and grief to unfortunate women and their children--in less favored circumstances than those of the parties to this proceeding. I am loath to convert the honorable role of wifehood to the dubious status of licensee--and, in turn, evictee--by unnecessarily expansive judicial legislation.

The parties here are husband and wife, living separate and apart; but there is no judicial decree of divorce or separation outstanding, nor a formal separation agreement between them. Sometime last year, when they were living together in their matrimonial home--a co-operative apartment legal title to which was in the name of the husband--the wife delivered to the husband a note wherein she stated that though she decided to live part from him, she would nevertheless like to remain in the apartment until she found another place. She also stated that she would get out 'as quickly as possible' and in any case not longer than two months; she suggested that he meanwhile stay at another apartment which he apparently kept. On the expiration of the stipulated period she declined to remove from the apartment; the husband sought and secured an order of eviction.

The question is whether a husband may evict his wife by summary proceedings from a matrimonial domicile, when there is no decree of divorce or separation, nor a formal, binding separation agreement. The only reported cases hold in the negative--such proceedings, they decide, cannot be maintained (Cipperly v. Cipperly, 104 Misc. 434, 172 N.Y.S. 351; Brooks v. Brooks, 146 Misc. 335, 261 N.Y.S. 211; Wright v. Wright, 188 Misc. 268, 67 N.Y.S.2d 63).

My brethren disregard these holdings because of the letter the respondent wife wrote, and the effect they accord it under the 1951 amendment to section 1411 of the Civil Practice Act, as a license to the wife to occupy the apartment. In this letter she said:

'Since I have decided to live apart from you, I appreciate your allowing me to remain in this apartment until I find a permanent place in which to move. I shall try to accomplish this as quickly as possible and in any case, I shall not stay any longer than two months.'

At the same time she gave him her check for a month's 'rent' of this apartment. The husband after the expiration of the two months served a formal notice on his wife that he elected to terminate the 'license' and that unless she moved before a stated day, he would commence summary proceedings under Section 1411, subdivision 8, of the Civil Practice Act. This subdivision now provides:

'8. In any case not otherwise provided for in this article, where he is a licensee of the person entitled to possession of the property at the time of the license, and (a) his license has expired, or (b) his license has been revoked by the licensor, or (c) his licensor is no longer entitled to possession of the property; * * *'.

Subdivision 8 of Section 1411 was enacted by Chapter 273 of the Laws of 1951, following a report of the Law Revision Commission (Legislative Document 1951, No. 65, p. 43). Reliance is placed on this quotation from the report:

'Commonly, realty occupied by married persons will be held in the name of one spouse. When the husband and wife separate, the spouse with the legal right to possession may be unable to induce the other to move from the house or apartment.' (Report p. 65)

In my view, the majority misinterpret both the Commission's comment and the legislative enactment. The topical heading of the paragraph in which the...