Tausik v. Tausik

Memorandum by the Court. • Determination of Appellate Term, dated April 4,1960 and April 5,1960, affirmed, with costs to respondent. Subdivision 8 of section 1411 of the Civil Practice Act, which was enacted following a recommendation by the Law Revision Commission (1951 Report of N. Y. Law Rev. Comm,. [N. Y. Legis. Doc., 1951, No. 65(C)]) provides for summary proceedings against a licensee whose license has expired or has been revoked by the licensor. Nothing in subdivision 8 of section 1411 limits the term ‘ ‘ licensee ” so as to exclude a spouse. Before the enactment of subdivision 8, the remedy to recover possession where a license had expired or had been revoked was by an action in ejectment. Such a suit could be maintained between spouses who had separated even though there was no judicial separation (Wood v. Wood, 83 N. Y. 575).

Subdivision 8 of section 1411 merely substituted the speedy remedy of a summary proceeding for the more cumbersome ejectment action. Clearly the written agreement herein signed by the wife (coupled with the payment by the wife of $450 in advance for the carrying charges of the co-operative apartment involved), constituted a license to use the husband’s property. Section 51 of the Domestic Delations Law permits a married woman to make contracts in respect to real or personal property except where the contract will relieve the husband fr.om his liability to support his wife. The contract in question does not fall within the excepted area and does not violate our public policy. The parties have actually separated. A determination in the instant proceeding in no way affects their respective rights in their pending matrimonial suit. Questions such as fault and support are to be disposed of in the separation action. All that is decided here is that a valid agreement of license was made; and the license having expired, the husband may avail himself of the statutory remedy given by subdivision 8 of section 1411 of the Civil Practice Act, instead of suing in an action of ejectment.