Crane v. Crane

49 A.D.2d 799, 373 N.Y.S.2d 237, 1975 N.Y. App. Div. LEXIS 10851

Opinion

—Order unanimously affirmed, with costs. Memorandum: Although the divorce transformed the tenancy by the entirety in the family residence into a tenancy in common, Special Term’s interpretation of the divorce decree and the separation agreement incorporated therein as granting the wife possession and use of the home as part of her support is reasonable. This partition action, therefore, constitutes a collateral attack upon the divorce decree. We affirm without prejudice to appellant’s institution of proceedings, if so advised, for modification of the agreement and divorce decree to eliminate respondent’s apparent right to retain possession and use of the residence (Ripp v Ripp, 38 AD2d 65, affd on opn at App Div 32 NY2d 755; Schaerr v Schaerr, 38 AD2d 581; Davies v Davies, 65 Misc 2d 480). (Appeal from order of Monroe Special Term in partition action.) Present—Marsh, P. J., Mahoney, Goldman, Del Vecchio and Witmer, JJ.