April 21, 1911.
Leo J. Curren, for the appellant.
William J. Driscoll, for the respondent.
Plaintiff and the defendant Josephina Vollaro are husband and wife. After their marriage two pieces of real property were conveyed to them, one in 1899 and the other in 1904. The complaint properly declares that they hold these lands as tenants by the entirety. Plaintiff brings this action for partition. Defendant demurs, and the question is presented whether one tenant by the entirety can compel partition of the lands thus owned against the will of the other. At common law a writ of compulsory partition only ran in favor of one coparcener against another. (Alln. Part. chap. 3, § 2, p. 54.) The English statute (31 Henry VIII, chap. 1; 32 id. chap. 32) extended it to tenants in common and joint tenants. (Id. 48; Mead v. Mitchell, 5 Abb. Pr. 92; affd., 17 N.Y. 210.) That case contains a history of our own statutes upon the subject down to the date of the decision thereof in 1857. Our subsequent statutes have not extended the scope of the action. Such action being statutory in character, there is no room for judicial construction of the various married women's acts and their effect upon the marital relation, so far as maintaining such an action is concerned, for the statute which was in force when the first of these pieces of property was acquired, and which is still in force, expressly provides that such an action may not be brought except by a joint tenant or a tenant in common. (Code Civ. Proc. § 1538.) While tenancy by the entirety partakes of some of the qualities of a joint tenancy, it is a different estate both in form and substance. ( Stelz v. Shreck, 128 N.Y. 263.) The notice of appeal in this case describes the judgment appealed from as an interlocutory judgment. As matter of fact the judgment is final in its character, and that judgment, and the order, should be affirmed, with costs.
JENKS, P.J., THOMAS, CARR and WOODWARD, JJ., concurred.
Judgment and order affirmed, with costs.