Petrone v. Petrone

In an action brought by a tenant in common of real property against his cotenant in common for an accounting, in which action a receiver was duly appointed and qualified, order fixing thirty dollars a month as the fair and reasonable rental for the use and occupation by the appellant of an apartment in said real property, directing him to pay such rental to the receiver from November 1, 1935, and until further order of the court, and, upon his failure so to pay, directing appellant to vacate said apartment and deliver possession thereof to the receiver, and enjoin 909 ing appellant from interfering with the receiver’s possession of the premises, reversed on the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. We are of opinion that the order was without authority in law. (Holmes v. Gravenhorst, 263 N. Y. 148, 152, 156; Prudence Co. v. 160 W. 73d St. Corp., 260 id. 205, 212; N. Y. Terminal Co. v. Gaus, 204 id. 512, 515.) The parties were tenants in common of the real property in question; therefore, the appellant’s possession of the apartment was in law the possession of both parties. (Wood v. Phillips, 43 N. Y. 152, 156; Burchell v. Burchell, 96 Misc. 600, 603.) There is no proof of any agreement by appellant to pay rent to the respondent, his cotenant, for the apartment, nor of any ouster by the appellant of the respondent from the premises. (Ibid.) Lazansky, P. J., Young, Hagarty, Adel and Taylor, JJ., concur.