| N.Y. App. Div. | Jun 18, 1951
In an action for partition which was settled by a stipulation of all the parties thereto and the entry of an interlocutory judgment, defendant Rudolph Schell appeals from the final judgment insofar as it denied a cross motion by him for a direction for payment to him out of the distributive share of defendant Lastecoueres of an amount claimed to be due for rent or for use and occupation of part of the premises which were to be conveyed to appellant under the stipulation and interlocutory judgment. Judgment, insofar as appealed from, modified on the law and the facts by inserting after the word “ denied ” in the second decretal paragraph the words “without prejudice to an action by defendant Rudolph Schell against defendant Lastecoueres for rent or use and occupation from the 23rd of January, 1951”. As so modified, the final judgment is unanimously affirmed, with costs to appellant. By the stipulation and the interlocutory judgment the relation of landlord and tenant between these parties arose upon the sale of the New Jersey parcel, at which time the interlocutory judgment required the delivery to appellant of the deed to the parcel in Queens County. Present — Carswell, Acting P. J., Johnston, Adel, Wenzel and Mae-Crate, JJ.