Heinlein v. Philipbar

Appellate Division of the Supreme Court of New York

Heinlein v. Philipbar

14 A.D.2d 924, 222 N.Y.S.2d 63, 1961 N.Y. App. Div. LEXIS 7675

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

DecidedNovember 27, 1961

StatusPublished

This text of 14 A.D.2d 924 (Heinlein v. Philipbar) 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

Heinlein v. Philipbar, 14 A.D.2d 924, 222 N.Y.S.2d 63, 1961 N.Y. App. Div. LEXIS 7675 (N.Y. Ct. App. 1961).

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Opinion

In our opinion, the record is barren of any proof that the plaintiff, either as an individual or as executrix, was ousted from the premises by defendants or either of them. Nor did the learned Trial Justice make any finding to such effect. In the absence of such prdof, plaintiff as a tenant in common, may not recover from defendants the value of their use and occupation (Matter of Limberg, 281 N. Y. 463; Kullman v. Wyrtzen, 266 App. Div. 791, 266 App. Div. 802). In any event, the award of damages as made, was to the plaintiff in her capacity as executrix, but her right to possession of the premises and to damages for ouster therefrom, lies in her individual [925]*925capacity as a tenant in common, a status affirmed in the fourth decretal paragraph of the judgment and in the form of the reconveyance deed annexed thereto. Nolan, P. J., Beldock, Ughetta, Pette and Brennan, JJ., concur.

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In our opinion, the record is barren of any proof that the plaintiff, either as an individual or as executrix, was ousted from the premises by defendants or either of them. Nor did the learned Trial Justice make any finding to such effect. In the absence of such prdof, plaintiff as a tenant in common, may not recover from defendants the value of their use and occupation (Matter of Limberg, 281 N. Y. 463; Kullman v. Wyrtzen, 266 App. Div. 791, 266 App. Div. 802). In any event, the award of damages as made, was to the plaintiff in her capacity as executrix, but her right to possession of the premises and to damages for ouster therefrom, lies in her individual [925]*925capacity as a tenant in common, a status affirmed in the fourth decretal paragraph of the judgment and in the form of the reconveyance deed annexed thereto. Nolan, P. J., Beldock, Ughetta, Pette and Brennan, JJ., concur.

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Bluebook (online)

14 A.D.2d 924, 222 N.Y.S.2d 63, 1961 N.Y. App. Div. LEXIS 7675, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heinlein-v-philipbar-nyappdiv-1961.

Opinion

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