
    Theodore Maekotter, Plaintiff, v. Barbetta Maekotter, Defendant.
    (Supreme Court, Kings Special Term for Trials,
    November, 1911.)
    Husband and wife — Property owned jointly or in common — Bight to rents and profits — Remedies — Accounting.
    Tenants in common and joint tenants — Rights and liabilities inter se —Actions between.
    Tenants by the entirety during their joint lives are each entitled, as tenants in common, to one-half the rents and income.
    Equity has concurrent jurisdiction of an action for an accounting between tenants in common for rents and income.
    In an equitable action between tenants in common for an accounting of rents and income a defense that plaintiff has an ade- ' quate remedy at law is waived unless pleaded.
    Action for an accounting between tenants in common of real property.
    .Greenthal & Greenthal, for plaintiff.
    Williams & Richardson, for defendant.
   Crane, J.

The complaint in this action alleges that the plaintiff and. the defendant are "tenants in common of property described therein and that' the defendant, having collected the rents for a number of years, refuses to account to the plaintiff therefor.

The answer of the defendant sets forth a statement of the amounts collected and paid out by her and alleges that the plaintiff has also collected rents for which he refuses to account, and she unites with the plaintiff in requesting this court to take and state the accounts of the parties. The cause coming up for trial at the Special Term, at which place both parties had noticed it for trial, the defendant moved for a dismissal of the complaint as it appears on the face thereof that the plaintiff has an adequate remedy at law.

It was conceded by both parties on the argument that the plaintiff and defendant are tenants by the entirety of the property in question; but this does not affect the result, as they are considered as tenants in common during the lifetime of both, and each is entitled to one-half the rents and income. Hiles v. Fisher, 144 N. Y. 306.

The defendant bases her motion upon the authority of Niehaus v Niehaus, 141 App. Div. 251. Upon demurrer to a complaint similar to this, it was held that equity had no jurisdiction, as an action for money had and received could have been brought at law.

I cannot follow this authority, as it appears to ine that the Court of Appeals as well as the Appellate Division have held just the contrary. Messing v. Messing, 64 App. Div. 125, decided that an estate by the entirety could not be partitioned, but that one tenant could demand an accounting from the other tenant who had received all the rents, and that this accounting was not an incident to the right to partition, but constituted a separate and independent cause of action of which equity would retain control.

The case of Gedney v. Gedney, 19 App. Div. 407, was an action for an accounting between tenants in common of property in the city of Hew York. It was there stated: “ It was, however, equally clear that, if one party did actually collect more than one-half the rent actually paid, there was nothing in the agreement which .would destroy his liability to account to the other tenant in common for the proportion that he had collected over the one-half which it was agreed he should collect.” When this action came up for trial it was sent to a referee and it was his decision which was affirmed by the Appellate Division. On appeal to the Court of Appeals the matter was again affirmed' (160 N. Y. 471). Judge Gray, writing for that court, begins his opinion with the statement that in this action it was sought to have an accounting between two brothers who were owners by tenancy in common.

■ Likewise, the case of Myers v. Bolton, 89 Hun, 342, was an action for accounting 'between tenants in common. On the trial the defendants moved, as in this case, ■ that the complaint be dismissed as the. case was legal and not equitable; but in the opinion of the Appellate Division it is stated that the defendants are liable to account to their co-tenants, upon- the. principles applicable to cases between tenants in common. This case was affirmed in the Court of Appeals, 157 N. Y. 393, in so far as this point is concerned.

It is quite evident, therefore, that in' this State equity has assumed jurisdiction over actions of accounting between tenants in common' and has such jurisdiction, even though it be concurrent with a court of law; or an action for money had and received be maintainable. 4 Kent’s Com. (6th ed.) 359, note. *

In view of the accountings, maintainable between tenants in common as indicated by the above cases, it certainly cannot be claimed that equity has no jurisdiction over such actions. If, therefore, equity has concurrent jurisdiction with a court of law over the action of accounting.between tenants in common, the defendant has waived her defense that an adequate remedy exists at law, as she has not pleaded it. Ketchum v. Depew, 81 Hun, 278; Grandin v. LeRoy, 2 Paige, 508.

It will be noticed that the Hiehaus case passed upon a demurrer to the complaint.

The conclusion, therefore, is that this motion must be denied and the case proceed to trial. Following the suggestion made at the hearing, counsel may restore this case .for the week commencing Hovember twenty-seventh, or such .other time" as they may stipulate.

Ordered accordingly'.  