Under the circumstances of the childless marriage of the parties, the denial of partition was an improvident exercise of discretion. Smaller living quarters can adequately accommodate plaintiff living alone. (See Sarmiento v Sarmiento, 43 A.D.2d 867; Parlato v Parlato, 44 A.D.2d 720; Ripp v Ripp, 38 A.D.2d 65, affd 32 N.Y.2d 755.) Latham, J.P., Damiani, Titone and Suozzi, JJ., concur.
In Sarmiento v. Sarmiento ( 43 A.D.2d 867) the Second Department recently recognized the inappropriateness of permitting a wife to retain possession of a marital domicile (of which she was co-owner) which by its size exceeded her needs with consequent disadvantage to the husband. There the court reversed as an abuse of discretion the denial of an application by the husband for partition of the marital residence where the wife, after divorce, was continuing to live in the seven-room house with two baths.
Smaller living quarters can adequately accommodate her living alone. An equitable adjustment of alimony may be made at Special Term in the light of this determination ( Sarmiento v. Sarmiento, 43 A.D.2d 867). With respect to the moneys which defendant withdrew from the parties' joint bank accounts, he may be charged only with the sum representing the one withdrawal made by him for his own purposes without plaintiff's knowledge or consent. The other three withdrawals, although also used for defendant's own purposes, were found by Special Term to have been made with plaintiff's knowledge and consent and are therefore not recoverable ( Sarrica v. Sarrica, 39 A.D.2d 766; Walsh v. Walsh, 29 A.D.2d 991; Grishaver v. Grishaver, 225 N.Y.S.2d 924) . Shapiro, Acting P.J., Cohalan, Christ, Benjamin and Munder, JJ., concur.
Furthermore, the judgment of divorce in this case specifically states that the support payments are "inclusive of all obligations of the defendant for the support and maintenance of plaintiff." Therefore, the court does not have to consider an equitable adjustment of the alimony after the grant of partition. (Sarmiento v Sarmiento, 43 A.D.2d 867.) Finally, plaintiff, as "a person holding and in possession of real property * * * may maintain [this] action for * * * partition."