Opinion
January 12, 1976
In a partition action, plaintiff appeals, as limited by his brief, from so much of an interlocutory judgment of the Supreme Court, Richmond County, dated July 17, 1975, as (1) awarded defendant one-half of the net rental value of the property and (2) awarded the referee a fee of $7,500. Interlocutory judgment modified, on the facts, by reducing the referee's fee to $5,000. As so modified, interlocutory judgment affirmed insofar as appealed from, with costs payable by plaintiff to respondent wife only. Defendant was wrongfully ousted by plaintiff from the marital home owned by them as tenants by the entirety. She was entitled to one-half of the rental value from that date to the date of sale pursuant to the partition decree, after due credit to plaintiff for the expenditures made by him in connection with maintenance, mortgage, taxes, insurance, etc. (Sirianni v Sirianni, 14 A.D.2d 432; Martos v Martos, 206 Misc. 860; Cagan v Cagan, 56 Misc.2d 1045). The fee awarded to the referee was excessive to the extent indicated herein. Gulotta, P.J., Hopkins, Martuscello, Cohalan and Rabin, JJ., concur.