
    WILLIAM ZORNTLEIN, Respondent v. GEORGE A. BRAM, et al., Appellants
    
      Estates—tenancy by entirety does not exist.—Partition—finding that parties are tenants in common, a sufficient finding that plaintiff was in actual or constructive possesson.
    
    Before Sedgwick, Ch. J., Freedman and Russell, JJ.
    
      Decided December 30, 1882.
    ' Appeal by defendants from a judgment directing sale of certain real estate, as asked by the complaint and that proceeds be divided, an actual partition being impossible.
    The plaintiff claimed to be owner of an undivided half of the property and tenant in common with the defendants who were owners of the other undivided half as was alleged by the complaint. The plaintiff derived title by a deed of conveyance made by Babeta Bram on September 28, 1881. Babeta Bram was then the wife of Jacob Bram. Babeta Bram derived title from a deed of conveyance made on April 24, 1878, to the said Jacob Bram and Babeta his wife. On September 30, 1881, Jacob Bram and Babeta Bram, joined in a deed of conveyance of the whole of the premises to the defendant.
    The court directed judgment of sale and division of proceeds. The defendant appealed, claiming that Jacob Bram and his wife were tenants in entirety, with right of survivorship.
    The court at General Term said : “ In the light of the reasoning of the opinion of Judge Daheoeth in Meeker v. Wright (76 JV. Y. 262), the court below was correct in its judgment on this question. It should be passed on by the court of appeals.”
    
    It was asserted that there was no finding of the fact that the plaintiff was in actual or constructive possession.
    The court at General Term, said : “That is sufficiently found, by the first finding, which is that the parties to the action are tenants in common.”
    
      I. A. Englehart and A. J. Dittenhoefer, for appellant.
    
      H. M. Gescheidt, for respondent.
    
      
       That tenancy by the entirety still exists, see Bertles v. Nunan, 92 N. Y. 152; and Freel v. Buckly, Id. 634.
    
   Opinion by Sedgwick, Ch. J.; Freedman, J., concurred.

Judgment affirmed, with costs.

Horace Russell, J.,

wrote as follows: “I agree that the questions in this case ought to be passed on by the court of appeals. But in view of the facts that that part of Judge D atteobth’s opinion in Meeker v. Wright, which takes the ground that the married woman’s act of 1862, has in effect overthrown the doctrine, that when real estate is conveyed to husband and wife they take as tenants of the entirety with the right of survivorship, etc., was not concurred in by a majority of the court, I do nob think it a sufficient authority for a decision at variance with all the previous (and indeed subsequent) decisions of this state, and of other states having a similar statute.”  