Opinion
November 16, 1949.
Appeal from Schenectady County Court.
The petitioner, Santo Pugliese, and his wife, Concetta, were the owners as tenants in common of the premises involved. Santo owned an undivided one-third and Concetta an undivided two-thirds interest. On the premises was a three-story building with a separate flat on each floor. The couple had separated. Concetta occupied the second-floor flat and the petitioner lived away from the premises. Concetta, without the knowledge or consent of the petitioner, leased the lower flat to the appellants, Michael Saburro and Frances Saburro. Frances Saburro was a daughter of Concetta by a former marriage, and Michael was the husband of Frances. The petitioner received none of the rent from this flat. Shortly after the appellants went into possession the petitioner served a written notice on them to vacate the flat, stating that he wanted it in good faith for his own use in accordance with the Housing and Rent Act of 1948 ( U.S. Code, tit. 50, Appendix, § 1881 et seq.). When the appellants failed to vacate, the petitioner instituted this proceeding in his own name alone by a petition in which his co-owner did not join. He stated in the petition that he was the owner of an undivided one-third interest as a tenant in common with his wife. After service of the precept and before trial, Concetta Pugliese conveyed by deed to Frances Saburro an undivided one-third interest in the premises. Frances Saburro, one of the appellants, thereby became a tenant in common with the petitioner and Concetta Pugliese. The appellants contend that the proceeding should be dismissed because of a defect of parties in that only one of the co-owners appears as petitioner, whereas all of the tenants in common must join in the petition under the requirements of section 1415 of the Civil Practice Act. The appellants also contend that a summary proceeding cannot be maintained by one tenant in common against another. The objections were timely made by the answer and by motions at the start of the trial. The court below held that the execution of the deed from Concetta Pugliese conveying an undivided one-third interest in the premises to Frances Saburro was a subversive act designed to defeat the petitioner's right of possession and was of no effect and validity in this proceeding. The court then made the order appealed from which awarded the delivery of possession of said lower flat to the petitioner alone and directed that a warrant issue to put him in possession. Concetta Pugliese had the right to convey at will a part of her undivided interest in the premises. The motive which induced the conveyance was immaterial. The conveyance resulted in vesting an undivided one-third interest in the property in the appellant, Frances Saburro, as a tenant in common with the other two owners. It was outside the power or jurisdiction of the court below in a summary proceeding to declare this deed void and inoperative. The petitioner, an owner of an undivided interest in the premises, could not alone, without having his co-owner join in the petition, maintain a summary proceeding to remove the appellants, one of whom became a co-owner as a tenant in common, and to have a specific portion of the premises awarded to him to the exclusion of his co-owners, the other tenants in common. ( Portnow v. La Rosa, 190 Misc. 695. ) Petitioner may pursue his remedy by partition if so advised. Order reversed on the law and proceedings dismissed, without costs. Foster, P.J., Heffernan, Deyo, Santry and Bergan, JJ., concur.