
    GOLDEN v. GRIFFIN.
    (Supreme Court, Appellate Division, Second Department.
    October 7, 1910.)
    Wills (§ 747*)—Action by Devisee—Defenses.
    _ The defense to an action by the devisee of property for use and occupation being payment to the temporary administrator, there should be proof of an order appointing such an administrator and authorizing him to take possession of the real property.
    [Ed. Note.—For other cases, see Wills, Dec. Dig. § 747.*]
    Woodward, J., dissenting.
    Appeal from Municipal Court, Borough of Brooklyn, Sixth District.
    Action by John J. Golden against Margaret Griffin. Erom a judgment dismissing the complaint, after trial without a jury, plaintiff appeals.
    Reversed, and new trial order'ed.
    Argued before WOODWARD, JENICS, THOMAS, RICH, and CARR, JJ.
    Robert McLeod Jackson, for appellant.
    William S. Butler, for respondent.
   THOMAS, J.

A man died on the 18th of July, 1909, seised of a house and lot, wherein he and his daughter, the defendant, and her family had resided, and devised such land and his furniture in the house to the plaintiff, his son, for life. The will was probated November 17, 1909. The defendant, as she admits, continued to occupy the upper floor of the house, and, as plaintiff alleges, the whole house, to January 17, 1910. This action is to recover for such use and occupation. The defense is that the defendant occupied only part of the house and paid the temporary administrator for that. The order appointing a temporary administrator and authorizing him to take possession of the real property does not appear in evidence, nor is there proof thereof.

The judgment dismissing the complaint should be reversed, and a new trial ordered; costs to abide the event. All concur, except WOODWARD, J., who dissents.  