From Casetext: Smarter Legal Research

Ackerman v. Ackerman

Appellate Division of the Supreme Court of New York, Second Department
Jul 15, 1974
45 A.D.2d 856 (N.Y. App. Div. 1974)

Opinion

July 15, 1974


In an action for the partition of real property, plaintiff appeals from an order of the Supreme Court, Westchester County, dated March 28, 1973, which granted defendant's motion (1) to dismiss the complaint for failure to state a cause of action and (2) to cancel plaintiff's notice of pendency of action. Order affirmed, with $20 costs and disbursements. We have been advised that, in a separate action, defendant has obtained a judgment declaring that she is still the lawful wife of plaintiff. Under these circumstances the plaintiff is not in any event entitled to partition. Had defendant not procured such a judgment we would nevertheless have affirmed the dismissal of the complaint, as we continue to adhere to our view that a partition action may not be brought by a tenant by the entirety who procured a foreign ex parte divorce. Such a divorce does not abrogate the property rights which form an economic incident of the marriage ( Anello v. Anello, 22 A.D.2d 694; Rodriguez v. Rodriguez, 40 A.D.2d 531). Cohalan, Christ, Brennan and Benjamin, JJ., concur; Shapiro, Acting P.J., concurs in the result on the ground first stated in the foregoing memorandum and concurs in the second ground stated under constraint of Anello v. Anello ( 22 A.D.2d 694) and Rodriguez v. Rodriguez ( 40 A.D.2d 531). [ 78 Misc.2d 1. ]


Summaries of

Ackerman v. Ackerman

Appellate Division of the Supreme Court of New York, Second Department
Jul 15, 1974
45 A.D.2d 856 (N.Y. App. Div. 1974)
Case details for

Ackerman v. Ackerman

Case Details

Full title:HOWARD ACKERMAN, Appellant, v. DIANE ACKERMAN, Respondent

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jul 15, 1974

Citations

45 A.D.2d 856 (N.Y. App. Div. 1974)

Citing Cases

Solomon v. Barth

Thus, a purchaser of the interest of a tenant by the entirety obtains only the right to use and possess the…

Martin v. Martin

In its memorandum decision on the motion, Special Term determined that the parties' marriage had been…