# Rosenstiel v. Rosenstiel

> Appellate Division of the Supreme Court of the State of New York · December 12, 1963 · 20 A.D.2d 71

URL: https://www.frixlaw.com/law-library/cases/5748577

## Case

- **Full name:** Lewis S. Rosenstiel v. Susan L. Rosenstiel, (And Two Other Actions.)
- **Court:** Appellate Division of the Supreme Court of the State of New York
- **Decided:** December 12, 1963
- **Citations:** 20 A.D.2d 71; 245 N.Y.S.2d 395; 1963 N.Y. App. Div. LEXIS 2725
- **Precedential status:** Published
- **Opinion:** Concurrence by Steuer
- **Judges:** Eager, Steuer
- **Cited by:** 60 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5748577

## How later opinions describe it (automated extraction)

- finding the statute that authorizes special proceedings to remove licensee from property is not applicable to authorize summary proceeding to evict a wife

## Opinion text

Steuer, J. (concurring).
I concur in the result, namely, that by virtue of the proceedings the defendant wife is out of the apartment and she cannot get back in. Whether in this particular case this result is reached by affirming or reversing the order on the motion for summary judgment is of small moment.
However, I cannot go all the way with the reasons underlying the decision and expressed in the scholarly opinion of my brother Eager. A spouse does not have a right to occupy realty owned by the other spouse by virtue of the marital status, any more than a spouse has a right to the use of any other property owned by the other spouse. G-ranted that, absent other factors, there is a privilege for such use implied in that status. Of course, the courts are empowered to require the husband to support the wife and this includes providing a home for her. In most instances the practical and expedient method of requiring the husband to provide shelter is to allow the wife to occupy the premises previously used as the marital home. But this is not to say that the court can compel the husband to allow the wife to use his property in that connection where other adequate provision is made for her.
Nor can I agree with the deductions drawn from the failure of the Legislature to enact the more specific provisions recommended by Professor Semerad. It is just as reasonable, in my opinion, to conclude that the Legislature acted upon the assumption that the situation created by the holdover of a spouse was already covered and that more specific provisions would only hamper the established procedures on provisions for support. The decision in Tausik v. Tausik (11 A D 2d 144) while distinguishable in the particular aspect pointed out in the majority opinion, must of necessity rest on recognition of these basic principles.
Botein, P. J., Breitel and Babin, JJ., concur with Eager, J.; Steuer, J., concurs in result in opinion.
Order, entered on July 11, 1963, unanimously reversed, on the law, with $20 costs and disbursements to appellant and respondent’s motion for summary judgment denied, with $10 costs.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5748577. Public record. Not legal advice.