O'Connell v. Kelly

New York Supreme Court

O'Connell v. Kelly

129 Misc. 155

DecidedJanuary 15, 1927

StatusPublished

This text of 129 Misc. 155 (O'Connell v. Kelly) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

O'Connell v. Kelly, 129 Misc. 155 (N.Y. Super. Ct. 1927).

Pincite

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.

Free access — add to your briefcase to read the full text and ask questions with AI

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.

Cite This Page — Counsel Stack

Bluebook (online)

129 Misc. 155, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oconnell-v-kelly-nysupct-1927.

Opinion

Related

Cite This Page — Counsel Stack