Bastians v. Bastians

Appellate Division of the Supreme Court of New York

Bastians v. Bastians

36 A.D.2d 1020, 321 N.Y.S.2d 480, 1971 N.Y. App. Div. LEXIS 4029

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 20, 1971

StatusPublished

Cited by1 cases

This text of 36 A.D.2d 1020 (Bastians v. Bastians) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bastians v. Bastians, 36 A.D.2d 1020, 321 N.Y.S.2d 480, 1971 N.Y. App. Div. LEXIS 4029 (N.Y. Ct. App. 1971).

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Opinion

Memorandum: The parties own residence property as tenants by the entirety. In this action plaintiff sues for divorce and defendant counterclaims for divorce. Defendant also prays that in the event a judgment of divorce is granted to either party, a further judgment for partition of said real estate be granted. Plaintiff appeals from the order denying his motion to dismiss the counterclaim for partition. Although a tenancy by the entirety cannot be made the subject of an action for partition (Anello v. Anello, 22 A D 2d 694; 14 Carmody-Wait 2d, New York Practice, Partition, § 91:12), defendant’s counterclaim is drafted contingent upon the dissolution of the marriage, in which case ownership of this property will be held by these parties as tenants in common and partition will then lie (Stelz v. Shreck, 128 N. Y. 263; Hosford v. Hosford, 273 App. Div. 659). The order was, therefore, properly made (Perles v. Perles, 27 N Y 2d 832). (Appeal from order of Monroe Special Term denying motion to dismiss counterclaim in divorce action.) Present — Goldman, P. J., Del Vecchio, Witmer, Gabrielli and Cardamone, JJ.

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Memorandum: The parties own residence property as tenants by the entirety. In this action plaintiff sues for divorce and defendant counterclaims for divorce. Defendant also prays that in the event a judgment of divorce is granted to either party, a further judgment for partition of said real estate be granted. Plaintiff appeals from the order denying his motion to dismiss the counterclaim for partition. Although a tenancy by the entirety cannot be made the subject of an action for partition (Anello v. Anello, 22 A D 2d 694; 14 Carmody-Wait 2d, New York Practice, Partition, § 91:12), defendant’s counterclaim is drafted contingent upon the dissolution of the marriage, in which case ownership of this property will be held by these parties as tenants in common and partition will then lie (Stelz v. Shreck, 128 N. Y. 263; Hosford v. Hosford, 273 App. Div. 659). The order was, therefore, properly made (Perles v. Perles, 27 N Y 2d 832). (Appeal from order of Monroe Special Term denying motion to dismiss counterclaim in divorce action.) Present — Goldman, P. J., Del Vecchio, Witmer, Gabrielli and Cardamone, JJ.

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Bluebook (online)

36 A.D.2d 1020, 321 N.Y.S.2d 480, 1971 N.Y. App. Div. LEXIS 4029, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bastians-v-bastians-nyappdiv-1971.

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