Heinlein v. Philipbar

In our opinion, the record is barren of any proof that the plaintiff, either as an individual or as executrix, was ousted from the premises by defendants or either of them. Nor did the learned Trial Justice make any finding to such effect. In the absence of such prdof, plaintiff as a tenant in common, may not recover from defendants the value of their use and occupation (Matter of Limberg, 281 N. Y. 463; Kullman v. Wyrtzen, 266 App. Div. 791, 266 App. Div. 802). In any event, the award of damages as made, was to the plaintiff in her capacity as executrix, but her right to possession of the premises and to damages for ouster therefrom, lies in her individual 925 capacity as a tenant in common, a status affirmed in the fourth decretal paragraph of the judgment and in the form of the reconveyance deed annexed thereto. Nolan, P. J., Beldock, Ughetta, Pette and Brennan, JJ., concur.