Newman v. O'Rourke

KAPPER, J. Summary proceedings brought on behalf of the heirs at law of the deceased wife to oust the husband from premises owned by the wife and in which the husband had no right of curtesy. [1-3] The presence of the husband in the premises at the time of the wife’s death did not constitute a legal occupancy. The final orders import a finding that the husband was present solely by the wife’s sufferance. Martin v. Rector, 101 N. Y. 77, 81, 4 N. E. 183. The legal title was in the wife, so that both the occupation and possession, in a legal sense, was that of the wife, and not of the husband. Kavanagh v. Barber, 131 N. Y. 211, 30 N. E. 235, 15 L. R. A. 689; Danihee v. Hyatt, 151 N. Y. 493, 45 N. E. 939. Immediately upon the death of the wife, the legal title descended to the heirs at law, and the husband was no longer present, even by sufferance, but became, as against the heirs at law, an intruder, within the meaning of subdivision 4 of section 2232 of the Code of Civil Procedure, and the proceedings against him under that statute were proper. Lincoln Trust Co. v. Hutchinson, 65 Mise. Rep. 590, 120 N. Y. Supp. 811, is distinguishable; the occupant there, the widow, being entitled to remain in the house of. her husband under the statute for 40 days after her husband’s death, and therefore both her entry and possession were lawful. Final order in each case affirmed, with costs. KELLY and BLACKMAR, JJ., concur.