52 A.D.2d 899 | N.Y. App. Div. | 1976
In a partition action, the plaintiff wife appeals (1) from an order of the Supreme Court, Suffolk County, dated April 29, 1975, which (a) denied her motion (i) to confirm the Referee’s report and (ii) for an interlocutory judgment of partition and sale and (b) directed the Referee to modify his findings of fact and conclusions of law so as to deny plaintiff reimbursement from the defendant husband’s share of the net proceeds of sale for certain expenditures made by her and (2) as limited by her brief, from so much of a further order of the same court, entered September 17, 1975, as, upon reargument, adhered to the original determination. Appeal from the order dated April 29, 1975 dismissed as academic. That order was superseded by the order made upon reargument. Order entered September 17, 1975 reversed insofar as appealed from, on the law and the facts, the motion to confirm the Referee’s report and for an interlocutory judgment of partition granted; and action remanded to Special Term for further proceedings not inconsistent herewith. Plaintiff is awarded one bill of costs to cover both appeals. We believe that the determination of the Referee, wherein he implicitly found that the plaintiff wife should be reimbursed from the defendant husband’s net proceeds of the partition sale of the marital home, inter alia for one-half of the payments made by her on the mortgage indebtedness, for maintenance and repair of the marital premises and for taxes, etc., up to the time of the divorce, was eminently correct and should have been adopted by Special Term. The record reveals that the parties married in September, 1954 and purchased the marital home as tenants by the entirety in November, 1962. They took title subject to an existing mortgage, which they evidently assumed and agreed to pay.