Burford v. Burford

24 A.D.2d 491, 261 N.Y.S.2d 489, 1965 N.Y. App. Div. LEXIS 3879

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 21, 1965
• Status: Published

Opinion

In an action for the partition of certain real property owned as tenants by the entirety by the plaintiff husband and the defendant wife, the plaintiff husband appeals from a judgment of the Supreme Court, Nassau County, entered January 21, 1964 upon the court’s decision-opinion after submission of the case upon a stipulation and agreed statement of facts, which dismissed the complaint. Judgment affirmed, without costs. The plaintiff husband’s ex parte Texas divorce may not affect the right of the defendant wife to occupy the dwelling owned by them as tenants by the entirety where such occupancy was granted to her by the valid separation decree of a New York court which antedated the foreign divorce decree. The Texas divorce decree affected only the marital status of the parties. It cannot operate to divest the property rights of a New York resident who did not appear in the foreign action (Anello v. Anello, 22 A D 2d 694). Personal service of process issuing out of the Texas court upon the wife in New York could not confer personal jurisdiction over her by the Texas court (Vanderbilt v. Vanderbilt, 1 N Y 2d 342, 351, affd. 354 U. S. 416; Pennoyer v. Neff, 95 U. S. 714). Ughetta, Acting P. J., Christ, Hill, Rabin and Benjamin, JJ., concur.