
    Mary B. Miller, Plaintiff, v. Herbert A. Miller et al., Defendants.
    Supreme Court, Special Term, Albany County,
    March 22, 1946.
    
      
      Harry B. Rezsemini for plaintiff.
    
      James T. Schwoerer for defendants.
   Bergan, J.

The answer does not raise any triable issue of fact. The essential facts are not. in dispute. The differences between the parties grow out of the legal interpretation to be given from instruments and from conceded acts of the parties. When the property was purchased at auction under an affidavit of the auctioneer (the instrument on which the record title rests) that John H. Miller and Mary Budd Miller purchased “ the said lands and premises ”, they became tenants by the entirety, since plaintiff and Johh H. Miller were then husband and wife. (See for example Armondi v. Dunham, 221 App. Div. 679, affd. 248 N. Y. 603.)

The motion to strike out the affirmative defenses and for judgment for the relief demanded in the complaint is granted, without costs.

Submit order.  