Tausik v. Tausik

CourtNew York Supreme Court — Appellate Term
Writing for the CourtBefore HOFSTADTER; PER CURIAM; HOFSTADTER
Citation200 N.Y.S.2d 543,21 Misc.2d 599
PartiesAdolph TAUSIK, Landlord-Respondent, v. Helen Tuck TRUSIK, Lecensee-Appellant.
Decision Date04 April 1960

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.

Page 544

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-[21 Misc.2d 600] 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.

Page 545

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.

[21 Misc.2d 601] 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...

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6 practice notes
  • Brennecke v. Smith
    • United States
    • New York County Court
    • 11 mai 1964
    ...husband instituted summary proceedings to evict her. The Municipal Court granted a final order, which was affirmed by the appellate term, 21 Misc.2d 599, 200 N.Y.S.2d 543, where Justice Hofstadter wrote a strong dissent. The appellate division affirmed, 11 A.D.2d 144, 202 N.Y.S.2d 82, where......
  • Murawski v. Melkun
    • United States
    • New York City Court
    • 3 octobre 1972
    ...(See Brennecke v. Smith, 42 Misc.2d 935, 249 N.Y.S.2d 602; Matter of Cheek v. Salkind, 28 Misc.2d 828, 214 N.Y.S.2d 83; Tausik v. Tausik, 21 Misc.2d 599, 200 N.Y.S.2d 543, aff'd 11 A.D.2d 144, 202 N.Y.S.2d 82, aff'd 9 N.Y.2d 664, 212 N.Y.S.2d 76, 173 N.E.2d 51; Stier v. President Hotel, 28 ......
  • Tausik v. Tausik
    • United States
    • New York Court of Appeals
    • 19 janvier 1961
    ...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 b......
  • Rosenstiel v. Rosenstiel
    • United States
    • United States State Supreme Court (New York)
    • 3 juillet 1963
    ...have in fact separated. The reasons for the enactment of subdivision 8 have been succinctly set forth in the case of Tausik v. Tausik, 21 Misc.2d 599, 200 N.Y.S.2d 543 (App.Term, 1st Dept., 1960), affd. 11 A.D.2d 144, 202 N.Y.S.2d 82, affd. w/o opin. 9 N.Y.2d 664, 212 N.Y.S.2d 76, 173 N.E.2......
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6 cases
  • Brennecke v. Smith
    • United States
    • New York County Court
    • 11 mai 1964
    ...husband instituted summary proceedings to evict her. The Municipal Court granted a final order, which was affirmed by the appellate term, 21 Misc.2d 599, 200 N.Y.S.2d 543, where Justice Hofstadter wrote a strong dissent. The appellate division affirmed, 11 A.D.2d 144, 202 N.Y.S.2d 82, where......
  • Murawski v. Melkun
    • United States
    • New York City Court
    • 3 octobre 1972
    ...(See Brennecke v. Smith, 42 Misc.2d 935, 249 N.Y.S.2d 602; Matter of Cheek v. Salkind, 28 Misc.2d 828, 214 N.Y.S.2d 83; Tausik v. Tausik, 21 Misc.2d 599, 200 N.Y.S.2d 543, aff'd 11 A.D.2d 144, 202 N.Y.S.2d 82, aff'd 9 N.Y.2d 664, 212 N.Y.S.2d 76, 173 N.E.2d 51; Stier v. President Hotel, 28 ......
  • Tausik v. Tausik
    • United States
    • New York Court of Appeals
    • 19 janvier 1961
    ...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 b......
  • Rosenstiel v. Rosenstiel
    • United States
    • United States State Supreme Court (New York)
    • 3 juillet 1963
    ...have in fact separated. The reasons for the enactment of subdivision 8 have been succinctly set forth in the case of Tausik v. Tausik, 21 Misc.2d 599, 200 N.Y.S.2d 543 (App.Term, 1st Dept., 1960), affd. 11 A.D.2d 144, 202 N.Y.S.2d 82, affd. w/o opin. 9 N.Y.2d 664, 212 N.Y.S.2d 76, 173 N.E.2......
  • Request a trial to view additional results

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