Opinion
September 4, 1958
Morris L. Meshel for plaintiff.
Herbert S. Felmer for defendants.
Plaintiff moves for an order dismissing the affirmative defense interposed by defendants pursuant to subdivision 6 of rule 109 of the Rules of Civil Practice and for a further order directing judgment on the pleadings in favor of the plaintiff for a partition as prayed for in the complaint and for such further relief as will be later discussed.
After carefully reading the affirmative defense interposed herein alleging that the action was not brought in good faith, and merely to harass the defendants and because of the ill feeling among the parties, the court concludes said affirmative defense should be dismissed. There are no restrictions or conditions imposed by section 1012 of the Civil Practice Act in the institution of such an action and accordingly the defendants cannot avail themselves of the affirmative defense pleaded. In Deeb v. Goryeb ( 258 App. Div. 93) the court held: "As tenants in common there is a statutory right to partition at any time and a breach of a collateral agreement governing the management of the property would constitute no defense thereto."
As regards plaintiff's right to a partition, section 1012 of the Civil Practice Act provides that where two or more persons hold and are in possession of real property as joint tenants, or as tenants in common, any one or more of them may maintain an action for partition of property according to the respective rights of the persons interested therein. This right is granted by statute and in the absence of any extraordinary or unusual circumstance the right of partition should be strictly observed. Accordingly, the court directs judgment in favor of the plaintiff for the partition as prayed for in the complaint.
Plaintiff and defendants are to account for the moneys received and expended by each of them in connection with the operation of said real property and a referee be appointed to ascertain and report the rights, shares and interests of the parties involved herein and whether partition is feasible or a sale of the property is necessary.
In connection with the counterclaim which is at issue between the parties herein, the court, in its discretion, orders a severance of the action as permitted under section 262 of the Civil Practice Act so that the matter involved therein can be determined at a trial.
Accordingly, plaintiff's motion is granted in all respects. Settle order on notice.