Upon divorce the parties become tenants in common of the property (Hosford v Hosford, 273 App. Div. 659, supra). The relation of tenants in common, in equal shares, begins when that of husband and wife ceases and not before (Carpenter v Carpenter, 130 Misc. 701; Yax v Yax, 125 Misc. 851; Stelz v Shreck, supra). The divorce operates in the future and has no retroactive effect.

The defendant, in addition to denials which are disposed of by the facts found, interposed a special defense that in March, 1930, she secured an absolute divorce, in the State of New York, from the plaintiff and that, under a statute of that State (§ 1156, Civil Practice Act) the shares of stock and the automobile in question became her absolute property. The provisions of this statute which are material to the present inquiry are as follows: "If, in an action for divorce brought by the wife, when final judgment is rendered dissolving the marriage, the plaintiff . . . has in her possession or under her control any personal property . . . which was left with her by the defendant, . . . the defendant shall not have any interest therein, absolute or contingent, before or after her death." In Carpenter v. Carpenter (1927) 225 N.Y.S. 426, 430, an action in which the plaintiff, from whom the defendant had been divorced, claimed certain furniture in her possession, it was stated: "It is urged, on behalf of the plaintiff, that, if [the statute] must be literally construed, it is unconstitutional, in that it deprives the plaintiff of his property without due process of law; on the other hand, it may be said that at any time during the pendency of the divorce action, and before final judgment, the plaintiff could have taken possession of any property to which he claimed title, and, having failed to do so, he must be deemed to have acquiesced in the operation of the statute, and to have voluntarily forfeited all claims to it; the statute, in effect, is one of limitation." The trial court in the present case was warranted in adopting this view, which appears to be the only available judicial construction of the purpose and meaning of the statute.

Assuming, as is required on such a motion, that the husband wrongfully abandoned the wife, this confers on her no right, title, lien, or other possessory interest to retain property owned by him (see 15 N.Y. Jur., Domestic Relations, § 173; cf. ibid. §§ 221, 222; see Carpenter v. Carpenter, 130 Misc. 701, 704; cf. Ann. Separation Suit — Division of Property, 74 A.L.R. 2d 316 et seq. generally, but especially pp. 340-342, 346). The implication defendant seeks to extract from Plohn v. Plohn ( 1 A.D.2d 824) is highly strained.

A different situation, however, arises at the time when the tenancy by the entirety is severed by the divorce decree. The tenancy in common originated then ( Carpenter v. Carpenter, 130 Misc. 701, 703). Any expenditures in the nature of mortgage payments, interest, improvements, etc., from that time on are subject to the equitable rules commonly applied in making distribution between tenants in common of the proceeds in a partition action (see 8 Carmody on New York Pleading and Practice, §§ 537-545; Hannan v. Osborn, 4 Paige Ch. 336; Green v. Putnam, 1 Barb. 500; Ford v. Knapp, 102 N.Y. 135; Cosgriff v. Foss, 152 N.Y. 104). Paragraph 4 should be stricken from the complaint; paragraphs 5, 6 and 7 should remain to permit a development of the facts as to when and under what circumstances the alleged expenditures were made. The order appealed from should be modified, on the law, accordingly, and as so modified affirmed, without costs.

The short answer is that neither as a matter of New York real property law nor as a matter of Federal constitutional law does that result follow and that, in fact, Federal constitutional law proscribes giving the Florida decree the effect thus claimed for it. Stelz v. Schreck ( supra) which established the New York real property rule, dealt with a New York divorce (the Special Term opinion, reported in 25 Abb. N.C. 133, so states). Of the other decisions in which the rule was reiterated, examination of the record in three ( Yax v. Yax, 240 N.Y. 590 [a decision on pleadings]; Yax v. Yax, 125 Misc. 851, affd. 217 App. Div. 714 [the same case after trial]; Hosford v. Hosford, 273 App. Div. 659) shows that they dealt with New York divorces and this appears to have been the case also in Carpenter v. Carpenter ( 130 Misc. 701) and Middleton v. Middleton (123 N.Y.S.2d 231) . In five others statement of the rule was obiter dictum, the cases involving no divorce ( Armondi v. Dunham, 221 App. Div. 679, affd. 248 N.Y. 603; Roberts v. Roberts, 206 Misc. 779, appeal dismissed 285 App. Div. 980; Fine v. Scheinhaus, 202 Misc. 272; Martos v. Martos, 206 Misc. 860; Mardt v. Scharmach, 65 Misc. 124).

Moreover, the divorce of the parties did not change the ownership into a tenancy in common ab initio. Carpenter v. Carpenter, 130 Misc. 701, 225 N YS. 426. Because of the nature of the tenancy, if one tenant leases the property and collects all of the rents, it seems probable that in the absence of unusual circumstances the other cannot require an accounting for a part of them. Wakefield v. Wakefield, 149 Pa. Super. 9, 25 A.2d 841; Stimson v. Stimson, 346 Pa. 68, 29 A.2d 679; Schweitzer v. Evans, (Pa.) 63 A.2d 39; 41 C.J.S., Husband and Wife, § 34, p. 464.