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PATRICK BEARY v. LEAH C. HOFFMAN ET AL. (12/23/69)
SUPREME COURT OF NEW YORK, SPECIAL TERM, SUFFOLK COUNTY
1969.NY.44078 <http://www.versuslaw.com>; 316 N.Y.S.2d 343; 64 Misc. 2d 1018
December 23, 1969
PATRICK BEARY, AS EXECUTOR OF GLADYS GUERNSEY, DECEASED, PLAINTIFF,v.LEAH C. HOFFMAN ET AL., DEFENDANTS
Beary & Beary for plaintiff.
J. Robert Annino for James L. Guernsey, individually and as ancillary executor of Bernard S. Guernsey, deceased, defendant.
Edward M. Pinter for Leah C. Hoffman, defendant.
John P. Cohalan, Jr., J.
Plaintiff seeks judgment pursuant to article 15 of the Real Property Actions and Proceedings Law that the estate of Gladys Guernsey, deceased, is the fee owner of three parcels of real property situate in Lindenhurst, Suffolk County, New York. Testatrix died July 11, 1967 after having commenced the action and Patrick Beary, as executor, was substituted by order of this court as party plaintiff in her place and stead, and the caption of the action has been amended accordingly. In addition to a general denial the amended answer of defendant, James Guernsey, contains five affirmative defenses and three counterclaims, plus a cross complaint against the co-defendant, with which we shall deal separately hereafter.
The affirmative defenses are briefly:
1. Failure to state a cause of action.
2. Collateral estoppel with reference to a Florida divorce obtained by Bernard S. Guernsey (Bernard), now deceased, against Gladys Y. Guernsey, (Gladys), now deceased.
3. Insufficiency of parties defendant because tenants of one of the parcels were not named in the action.
4. No valid marriage existed between Bernard and Gladys.
5. Because of the invalidity of the marriage (see 4, supra), Bernard and Gladys held the premises as tenants in common and not as tenants by the entirety. This allegation is also the gravamen of the first counterclaim which demands partition of the properties.
6. A second counterclaim for one half of the moneys had and received by Gladys from a tenant or tenants of the premises, in which she allegedly held a one-half undivided interest, only.
7. Third counterclaim claims that Gladys on or about May 1, 1964 became possessed of personal property of Bernard of a value of $10,000 and has refused to pay over or deliver the same to Bernard and his successors in interest.
Bernard was a peripatetic husband and father. His marital meanderings covered several States in the Union. They follow in chronological order:
1. Marriage to Mary Catherine (Catherine) in 1920 in Suffolk County. Defendant, James, was the sole issue of this marriage; he was born March 22, 1930.
2. Divorce from Catherine in 1935 in Nevada.
3. Remarriage to Catherine in 1938 ...