Karp v. Karp , 246 A.D. 730 ( 1935 )

Action to recover the contents of a safe deposit box in the name of plaintiff’s husband, which box was formerly in the joint names of plaintiff and her husband. Judgment for plaintiff directing that the property be turned over to her and directing that the safe deposit company break open the box, by force if necessary, to give her such possession of the contents in the event that the husband fails to attend at a specified time and open the box, unanimously affirmed, in so far as appealed from, with costs. The default of the husband under the pleading served had the effect of a concession by him that the specified property in the safe deposit box belonged to the plaintiff and that she was entitled to access thereto, through the act of the husband or any other means reasonably appropriate to that end. The direction that the safe deposit company open the box by force,' in the event that the husband did not appear at a specified time to give such access, is merely a direction by appropriate means to give an access to the property which the husband by his default concedes is an access to which the plaintiff is entitled. A court order or judgment directing, in the absence of the husband, the use of any instrumentality for the opening of the box, such as the sheriff, or the safe deposit company itself, is proper, and such instrumentality is, under the circumstances, protected by such order or judgment from claims from any source whatever, and particularly from the claim of the husband. Present — Lazansky, P. J., Young, Hagarty and Tompkins, JJ.; Carswell, J., not voting.