183 Misc. 896 | N.Y. Sup. Ct. | 1945
The defendant challenges the legal sufficiency of plaintiff’s complaint.
According to the complaint, the parties since on or about July 28, 1933, have been and are tenants by the entirety of certain improved real property; that between January 1, 1942, and up to the date of the complaint the defendant has been in possession and control of the ground floor of the premises and has committed the following acts of waste: (a) neglect to take care of the pipes with the result that they became broken and burst, thereby depriving the entire building of running hot and cold water; (b) willful neglect to paint the interior and exterior of the building so that the boards are now rotting away and require replacement, which she has refused to do; (c) willful neglect and failure to make ordinary and necessary repairs, including roof repairs, with the result that the building has deteriorated and become dilapidated; (d) that the defendant has cut down and carried away without authority and without leave of the plaintiff the trees located in front of the premises; (e) that by failure to attend to the ordinary and necessary needs of the house and by unjustified aggressiveness the defendant has driven away the tenant who occupied the five rooms on the upper floor and no other tenant has been found; that the plaintiff has demanded of the defendant that she restore the premises to their original condition or that, in the alternative, that she allow him access thereto for the purpose of permitting him, at his own cost and expense to repair them, but the defendant had neglected and failed to comply with either of the aforesaid demands; that by reason of the foregoing the plaintiff has sustained damages in the sum of $1,000.
The defendant contends that actions for waste are governed by sections 520 to 528 inclusive of the Beal Property Law of the State of New York and that since the plaintiff is a tenant by the entirety — .an interest not embraced in said sections — he has no legal capacity to sue and, therefore, the complaint fails to state facts sufficient to constitute a cause of action. The plaintiff, while conceding that a tenant by the entirety does not strictly come w’thin the purview of the aforesaid statutes, argues nevertheless that he has “ the old common law action on the case in the nature of waste or equitable waste ”.
Neither side has submitted any authority governing the precise situation here presented. Lack of precedent alone, however, is no reason for turning a plaintiff out of court provided that there “ can be found a clear and unequivocal principle of the common law which either directly or mediately governs it or which by analogy or parity of reasoning ought to govern it ” (Roberson v. Rochester Folding Box Co., 171 N. Y. 538, 546).
The novelty of a situation does not weigh against the soundness of a proposition of law. As was said by Judge Vann in Kujek v. Goldman (150 N. Y. 176, 178): “ Courts sometimes of necessity abandon their search for precedents and yet sustain a recovery upon legal principles clearly applicable to the new state of facts, although there was no direct precedent for it, because there had never been an occasion to make one. In remote times, when actions were so carefully classified that a mistake in name was generally fatal to the case, a form of remedy was devised by the courts to cover new wrongs as they might occur so as to prevent a failure of justice. This was called an ‘ action on the case,’ which was employed where the right to sue resulted from the peculiar circumstances of the case and for which the other forms of action gave no remedy.”
It is this principle which the plaintiff invokes here. In short his argument is that since a wrong has been committed, there should in justice be a remedy and that this court is not powerless to help protect his interest in the real property against the wrongful acts of his wife.
In light of the foregoing characteristics of a tenancy by the entirety it may be argued with some force that the plaintiff has an action for waste as distinguished from “ an action on the case for waste ” since under section 525 of the Real Property Law “ An action for waste may also be maintained, by a joint tenant or tenant in common, against his co-tenant, who commits waste upon the real property * 8 But it is unnecessary now to so hold in considering the legal sufficiency of the complaint for a motion under rule 106 of the Buies of Civil Practice must be denied “ If in any aspect upon the facts stated the plaintiff is entitled to a recovery ”, (Dyer v. Broadway Central Bank, 252 N. Y. 430, 4-32-433; Condon v. Associated Hospital Service, 287 N. Y 411, 414.) Equally unnecessary is it to decide upon this motion whether plaintiff’s cause of action is “ maintainable in equity rather than at law ”. (Lubin v. Sydenham Hospital, Inc., 261 App. Div. 499; Abbey v. Wheeler, 170 N. Y. 122, 127.)
In Hiles v. Fisher (supra) it was conclusively established that tenants by the entirety are each entitled to one half of the rents and profits so long as the question of survivorship is in abeyance. So it was held in two recent cases. In T. G. W. Realties, Inc., v. Long Island Bird Store, Inc. (151 Misc. 918, 924) husband and wife owning property by the entirety had separated and their tenant had received notice from one of
There are, moreover, decisions in this State which hold that a tenant by the entirety can sue alone to restrain a third party from injuring the freehold (Grosser v. City of Rochester, 148 N. Y. 235), or to recover damages for injuries to such interest even if the other tenant by the entirety is barred by reason of the failure to duly file a claim. (Matter of Goodrich v. Vil. of Otego, 216 N. Y. 112, supra; see, also, D’Angelo v. New York Central Railroad Co., 209 App. Div. 775; Mastrofrancisco v. Mohawk Gas Co., Inc., 201 App. Div. 586; Gray v. State of New York, 116 Misc. 760; MacFarland v. State of New York, 177 Misc. 117; Nightingale v. State, 46 N. Y. S. 2d 525.)
If, as established by the last-cited cases, a tenant by the entirety may alone sue a third party for damages, or to restrain such third party from' injuring the freehold, then by analogy or parity of reasoning, it is difficult to see why such suits may not be maintained by one tenant by the entirety against the other where injury has been caused or threatened as the result of acts of the cotenant who, as here, is in sole possession and control of the premises. In this State, husband and wife are no longer under the disability of maintaining suits against the other for tortious acts. Section 57 of the Domestic Relations Law (L. 1937, ch. 669, § 1, eff. Sept. 1, 1937) provides in part: “ A married woman has a right of action against her husband for his wrongful or tortious acts resulting to her in any personal injury * * * or" * * * in injury to her property, as if they were unmarried, and she is liable to her husband for her wrongful or tortious acts resulting in any such personal
In light of the foregoing views, the motion is denied with leave to the defendant to serve her answer within ten days of the service of the order hereon, with notice of entry.