Lincoln Trust Co. v. Hutchinson ( 1910 )

Lehman, J.

The petition sets forth that the respondent’s ward is the heir at law of William H. Hutchinson and is seized and possessed of certain real property, subject to the right of dower of Maria S. Hutchinson, which has not been assigned to her, and that more than forty days have elapsed since the death of William H. Hutchinson, and the said Maria S. Hutchinson occupies the said premises to the exclusion of the petitioner.

The answer sets forth that Maria S. Hutchinson occupied the premises prior to the death of William H. Hutchinson and was in possession of and occupying the same at the death of William H. Hutchinson, and ever since that time has been in quiet possession thereof; that neither she nor the person from or through whom she claims was ever a tenant or lessee of the premises, and that she has not intruded into or squatted upon the said premises without the consent of the person entitled to the possession thereof. The answer further sets forth that the defendant, to protect the premises, paid off a mortgage upon the premises and acquired all the interest of the mortgagee therein and is therefore now a mortgagee in possession of the premises.

The trial justice awarded possession of the premises practically upon the pleadings. Aside from the question raised for the first time on appeal as to the technical sufficiency of the petition, the appellant urges: first, that the petitioner is not entitled to possession; second, that, if it is entitled to possession, summary proceedings are not the proper method of obtaining possession. It seems to me that the appellant is wrong upon the first point. A widow is entitled to remain in the chief house of her husband for forty days after her husband’s death. Eeal Property Law, S 204. Thereafter the heir at law is entitled to the possession and the widow is relegated to her right of action for the assignment of dower. Hor has she obtained greater rights by the purchase of the mortgage. She never obtained possession as mortgagee by consent of the person entitled to possession. Barson v. Mulligan, 191 N. Y. 306. However, we need not definitely decide this point because, even though the petitioner is entitled to possession, she cannot obtain it by summary proceedings. These proceedings are a creature of statute and apply only in those cases designated by the statute. The petitioner can prevail only if it has shown that the defendant has intruded or squatted upon the premises without the permission of the person entitled thereto. Code Civ. Pro. § 2232, subd. 4. If the person sought to be dispossessed has entered lawfully, no notice to leave can thereafter render him subject to this provision of the Code. Matter of Stoclcwell v. Washburn, 59 Misc. Rep. 543. The only question to be determined is, “ Hid respondent gain possession of the premises as an intruder ? ” O’Donnell v. McIntyre, 41 Hun, 100. In this case the petitioner has not alleged that the appellant has intruded upon the premises, nor are there any allegations from which that fact could be inferred. On the contrary, while it has not alleged that the premises were the chief house of the decedent, it has alleged that forty days have elapsed since decedent’s death; and this allegation would be immaterial except upon the assumption that they were the chief house. Under these circumstances, it certainly does not appear that the entry of the appellant was unlawful. During these forty days her possession was lawful and could not he disturbed. Thereafter the heir at law had the common law right to obtain possession, hut the statute has given her no additional rights.

The final order should he reversed and the proceedings dismissed, with costs to the appellant.

Giegerich and Dayton, JJ., concur.

Order reversed and proceedings dismissed.