Opinion
January 22, 1968
Order of the Supreme Court, Nassau County, entered December 16, 1966, modified, on the law, by adding thereto provisions that the third affirmative defense in defendant Paula Greenberg's answer is dismissed and that plaintiff's motion is further granted insofar as it was for appointment of a Referee to ascertain the respective rights of the parties in the property. As so modified, order affirmed insofar as appealed from, without costs. Action remitted to the Special Term for further proceedings not inconsistent herewith. No questions of fact were considered on these appeals. In our opinion, the third affirmative defense is insufficient in law as a defense to an action in partition by a tenant in common. Accordingly, a reference should be directed to ascertain the rights of the respective parties (Real Property Actions and Proceedings Law, § 911). Christ, Acting P.J., Brennan, Rabin, Hopkins and Munder, JJ., concur.