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Dolan v. Dolan

125 Misc. 849 Court Supreme Court, Appellate Term, Second Department, Decision date 1925-01-22 English

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p. 849
William E. Dolan, Appellant, v. Margaret A. Dolan, Respondent.
Supreme Court, Appellate Term, Second Department,
January 22, 1925.

Headnote

Joint tenancy — tenancy in common — action at law under Real Property Law, § 532, to recover proportion of rent — plaintiff entitled to recover where defendant received more than his just share — jurisdiction of court of equity concurrent not exclusive in action — rule applicable to tenants by entirety.
Plaintiff, a joint tenant or tenant in common, is entitled to recover in an action at law against his cotenant, brought under section 532 of the Real Property Law, his just proportion of the rent, where the said cotenant has received more than his just share thereof.
The same rule applies to tenants by the entirety. Though a court of equity has jurisdiction in such a ease, its jurisdiction is concurrent and not exclusive.
Appeal from a judgment of the Municipal Court, Borough of Brooklyn, First District.
William J. McDermott, for the appellant.
Joseph Katz, for the respondent.

Judgment unanimously reversed upon the law and new trial granted, with fifteen dollars costs to appellant to abide the event.

Under section 532 of the Real Property Law (as added by Laws of 1920, chap. 930), an action at law may be maintained by one joint tenant or one tenant in common against another to recover his just proportion of the rent where the tenant sued has received more than his just proportion. While a court of equity also has jurisdiction in such a case, its jurisdiction is concurrent and not exclusive. (Joslyn v. Joslyn, 9 Hun, 388 -390; Wright v. Wright, 59 How. Pr. 176 , 184; Coakley v. Mahar, 36 Hun, 157 ; Maekotter v. Maekotter, 74 Misc. 214 , 216; Minion v. Warner, 185 App. Div. 246 , 247; 238 N. Y. 413 , 417, 418.)

Tenants by the entirety come within the foregoing rule. (Matter of Goodrich v. Village of Otego, 216 N. Y. 112 , 117.)

Present: Cropsey, Lazansky and MacCrate, JJ.

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