Opinion
April 12, 1976
In a partition action, defendant appeals from so much of an interlocutory judgment of the Supreme Court, Nassau County, dated August 11, 1975, as modified the Referee's report by crediting plaintiff with the reasonable rental value of defendant's occupancy of the premises during the time he was in sole possession thereof up to the time of the divorce. Interlocutory judgment affirmed insofar as appealed from, with costs. Generally, in an action for partition, the court may require the parties to do equity as between themselves. On the facts in the present case, it was within the power of Special Term to offset, as against defendant's credit for expenses incurred in maintaining the property, the reasonable value of his use and occupancy thereof (see Ann 51 ALR2d 388, 395-396). Hopkins, Acting P.J., Martuscello, Latham, Shapiro and Hawkins, JJ., concur.