Tausik v. Tausik
| Decision Date | 05 July 1960 |
| Parties | Adolph TAUSIK, Landlord-Respondent, v. Helen Tuck TAUSIK, Licensee-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Joseph F. Seminara, Brooklyn, of counsel (Sidney A. Wolff, New York City, on the brief; Goldstone & Wolff, New York City, attorneys) for appellant.
Meyer Kraushaar, New York City, of counsel (Philip Wolfson, Brooklyn, on the brief; Bonom & Wolfson, Brooklyn, attorneys), for respondent.
Before BOTEIN, P. J., and RABIN, VALENTE, McNALLY, and BERGAN, JJ.
Determination of Appellate Term, dated April 4, 1960 and April 5, 1960, are affirmed, with costs to respondent. Section 1411, subd. 8, of the Civil Practice Act, which was enacted following a recommendation by the Law Revision Commission (Leg.Doc.1951, No. 65C), provides for summary proceedings against a licensee whose license has expired or has been revoked by the licensor. Nothing in subd. 8 of section 1411 limits the term 'licensee' so as to exclude a spouse. Before the enactment of subd. 8, the remedy to recover possession where a license had expired or had been revoked was by an action in ejectment. Such a suit could be maintained between spouses who had separated even though there was no judicial separation (Wood v. Wood, 83 N.Y. 575). Section 1411, subd. 8, merely substituted the speedy remedy of a summary proceeding for the more cumbersome ejectment action. Clearly the written agreement herein signed by the wife (coupled with the payment by the wife of $450 in advance for the carrying charges of the co-operative apartment involved), constituted a license to use the husband's property. Section 51 of the Domestic Relations Law permits a married woman to make contracts in respect to real or personal property except where the contract will relieve the husband from his liability to support his wife. The contract in question does not fall within the excepted area and does not violate our public policy. The parties have actually separated. A determination in the instant proceeding in no way affects their respective rights in their pending matrimonial suit. Questions such as fault and support are to be disposed of in the separation action. All that is decided here is that a valid agreement of license was made; and the license having expired, the husband may avail himself of the statutory remedy given by section 1411, subd. 8, of the Civil Practice Act, instead of suing in an action of ejectment.
Determination of Appellate Term, dated April 4, 1960 and April 5, 1960, affirmed, with costs to respondent.
All concur except RABIN and McNALLY, JJ., who dissent and vote to reverse and dismiss in a dissenting opinion. McNALLY, Justice (dissenting).
The determination of the Appellate Term should be reversed and the summary proceeding dismissed.
Subdivision 8 of section 1411 of the Civil Practice Act, which enables a licensor to institute summary proceedings to recover possession of real property, has no application to a proceeding by one spouse as against the other prior to a judicial separation or divorce to recover possession of an apartment constituting the marital domicile. In fact, it is my view that subdivision 8 may not be applied to situations involving a husband and wife relationship.
Subdivision 8 was added by chapter 273 of the Laws of New York 1951. The recommendation of the Law Revision Commission which accompanied the bills (McKinney's Session Laws of New York, 1951, p. 1435; New York Legislative Documents, 174th session, 1951, vol. 8, No. 65[C], pp. 7-10) states the purpose of subdivision 8 is to enable a summary proceeding against one who enters under a license and refuses to leave when the license is terminated. The recommendation cites and comments on Williams v. Alt, 226 N.Y. 283, 123 N.E. 499, and related cases, which clearly are inapplicable to husband and wife. The study submitted with the recommendation (New York Legislative Document, No. 65[C] supra, pp. 18-24) treats with seven categories of trespassers denominated (a) to (g), inclusive. In category (a) the study deals with 'Licensee Holding Possession after License Revoked', and category (e) concerns itself with 'Spouse Remaining on Premises after...
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