O'Connell v. Kelly

129 Misc. 155

Opinion

Per Curiam.

Judgment and order unanimously reversed upon the law, and new trial granted, with thirty dollars costs to appellant to abide the event.

The action was for money had and received. It was brought by one tenant in common of real property against another such tenant to recover plaintiff’s share of the rents collected by defendant. Such tenants are not partners, and the Municipal Court has jurisdiction of such an action. This court decided the same question in Dolan v. Dolan (125 Misc. 849), the memorandum opinion reading: “ Under section 532 of the Real Property Law * * * an action at law may be maintained by one joint tenant or one tenant in common against another to recover his just proportion of the rent where the tenant sued has received more than his just proportion. While a court of equity also has jurisdiction in such a case, its jurisdiction is concurrent and not exclusive. (Joslyn v. Joslyn, 9 Hun, 388-390; Wright v. Wright, 59 How. Pr. 176, 184; Coakley v. Makar, 36 Hun, 157; Maekotter v. Maekotter, 74 Misc. 214, 216; Minion v. Warner, 185 App. Div. 246, 247 ; 238 N. Y. 413, 417, 418.) Tenants by the entirety come within the foregoing rule. (Matter of Goodrich v. Village of Otego, 216 N. Y. 112, 117.) ” (See, also, notes in 28 L. R. A. 829-849; 29 L. R. A. [N. S] 230-232; 27 A. L. R. 185-246.)

Present — Cropsey, MacCrate and Lewis, JJ.