Marie Solan Gaza and Hedwika Gaza Svoboda, Appellants, v. Rudolph J. Gaza, Respondent

Marie Solan Gaza and Hedwika Gaza Svoboda, Appellants, v. Rudolph J. Gaza, Respondent. [MAJORITY] Appeal from a judgment entered in Broome county dismissing plaintiff’s complaint upon the merits, said judgment being entered upon a decision rendered after a trial without a jury at a Trial and Special Term of the Supreme Court held in and for said county, in an action for partition. The question presented is whether the grantees in the deed took as tenants in common or as joint tenants. The warranty deed is between the grantors and “ Ludwig Gaza and Berta Gaza, husband and wife, as tenants by the entirety.” It then states that the parties of the first part for the consideration named, “ do hereby grant and release unto the parties of the second part, the survivor, their or the survivor’s heirs and assigns forever,” the premises in question. And the habendum clause is as follows: “ To have and to hold the premises herein granted unto the parties of the second part, the survivor, their or the survivor’s heirs and assigns forever.” The grantees were not husband and wife, as Ludwig Gaza was then legally married to the plaintiff. It is the contention of the plaintiffs that the grantees took as tenants in common, while the defendant asserts that they took as joint tenants. The defendant’s contention was upheld by the court below. Judgment affirmed, with costs. Hill, P. J., Rhodes and Crapser, JJ., concur; McNamee and Bliss, JJ., dissent.