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AGNES MCLAUGHLIN v. JOHN MCLAUGHLIN (12/02/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


December 2, 1968

AGNES MCLAUGHLIN, RESPONDENT-APPELLANT,
v.
JOHN MCLAUGHLIN, APPELLANT-RESPONDENT

In an action for separation, the parties cross-appeal from different portions of a judgment of the Supreme Court, Queens County, dated April 3, 1968.

Brennan, Acting P. J., Rabin, Hopkins, Benjamin and Martuscello, JJ., concur.

Plaintiff's appeal is from so much of the judgment as dismissed the complaint and as did not order defendant to make payments of money to her as alimony; and defendant's appeal is from so much of the judgment as awarded to plaintiff possession of a dwelling owned by the parties as tenants by the entirety and ordered him to pay the carrying and maintenance charges thereon. Judgment modified, on the law and the facts and in the exercise of discretion, by deleting the third decretal paragraph thereof and inserting, in its stead, the requirement that defendant shall be liable for one half of the following expenses: mortgage interest and amortization, taxes and assessments, and fire and liability insurance. As so modified, judgment affirmed, without costs. The trial court had the power to award exclusive possession of the marital domicile to plaintiff and to require defendant to pay the carrying and maintenance charges thereon, notwithstanding the failure of plaintiff to obtain a judgment of separation (see Watkins v. Watkins, 19 A.D.2d 872; Zahler v. Zahler, 28 A.D.2d 925). However, in our opinion, a full consideration of the circumstances of the parties affords no basis for the direction that defendant pay all of such charges (cf. Brownstein v. Brownstein, 25 A.D.2d 205). The interests of justice will be better served, in this case, if defendant is merely required to make payments on account of and to preserve his equity in the property.

19681202

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