In reviewing the pleadings, the memoranda and the oral argument of counsel this court does not find that the circumstances of the parties in the instant case come within the purview of section 713 Real Prop. Acts. of the Real Property Actions and Proceedings Law. The case of Tausik v. Tausik ( 21 Misc.2d 599) dealt with an issue similar to the instant case. The petitioner cites Tausik, in support of his position and the respondent contends that the rule of that particular case does not apply.

The respondent urges conversely that, having come upon possession by reason of the matrimonial domicile created by her marriage to the deceased Adam Melkun, such a proceeding describing her as a squatter is without a sufficient basis in law, and must, therefore, fail. An examination of the case law addressed to section 713 Real Prop. Acts. of the Real Property Actions and Proceedings Law sets forth a plethora of decisions, none of which, however, address themselves to the specific issues raised herein (see Matter of Brennecke v. Smith, 42 Misc.2d 935; Matter of Cheek v. Salkind, 28 Misc.2d 828; Tausik v. Tausik, 21 Misc.2d 599, affd. 11 A.D.2d 144, affd. 9 N.Y.2d 664; Stier v. President Hotel, 28 A.D.2d 795; Kaufman v. Zash, 7 A.D.2d 927, affd. 7 N.Y.2d 831; Williams v. Alt, 226 N.Y. 283). The petitioner argues that there is a sufficient basis for the success of this proceeding and urges the general applicability of section 713 Real Prop. Acts. of the Real Property Actions and Proceedings Law in providing the relief sought.

When she failed to vacate at the end of two months the husband instituted summary proceedings to evict her. The Municipal Court granted a final order, which was affirmed by the Appellate Term ( 21 Misc.2d 599) where Justice HOFSTADTER wrote a strong dissent. The Appellate Division affirmed ( 11 A.D.2d 144) where Justice McNALLY also wrote a strong dissent concurred in by Justice RABIN.

It appears from a study thereof that it was intended by the Legislature to afford a spouse, with legal right to possession of realty, the simple and speedy relief of summary proceedings, where the husband and wife have in fact separated. The reasons for the enactment of subdivision 8 have been succinctly set forth in the case of Tausik v. Tausik ( 21 Misc.2d 599, affd. 11 A.D.2d 144, affd. 9 N.Y.2d 664). The Appellate Term stated that the refusal of our courts to entertain summary proceedings against a refractory spouse, trespasser though she may be was one of the reasons which led the Legislature to add subdivision 8 to section 1411 of the Civil Practice Act, thus affording to the spouse with the legal right to possession the simple and speedy relief of summary proceedings where "`the husband and wife separate'".