Summary
In Basch v. Basch (278 App. Div. 734) the same court restated that rule but intimated that a temporary order might be on a different footing.
Summary of this case from Mayeri v. MayeriOpinion
March 14, 1951.
Appeal from Supreme Court, Ulster County.
Present — Foster, P.J., Heffernan, Brewster, Bergan and Coon, JJ.
The action is for a divorce and the order directs the payment to the plaintiff of money for the support of the children of the marriage. The appeal, however, is from that portion of the order only which, during the pendency of the action, directs the husband to give plaintiff the use of a house owned by the parties as tenants by the entirety and which orders that the husband remove himself from such premises. The general power to direct this disposition of real property unconditionally as part of a judgment in a matrimonial action has been denied ( Cox v. Cox, 266 App. Div. 38) and even as a temporary arrangement it is open to doubt; but here the affidavit of the husband's lawyer on the motion seemed to offer such a disposition as one of the solutions available to the Special Term in such form and in such language that the husband is estopped on this question. Order unanimously affirmed, with $10 costs and printing disbursements.