In a partition action, the defendant appeals from an order of the Supreme Court, Richmond County, entered February 9, 1960, which: (1) granted plaintiff's cross motion for summary judgment striking out defendant's answer; and (2) denied defendant's motion to preclude. Order affirmed, without costs. Under the deed by which the parties acquired title to the property, the intention was to take as tenants by the entirety. The parties, however, were not then and never have been legally married. Therefore, they are tenants in common of the property involved and partition is maintainable. The respective contributions of the parties to the purchase and upkeep of the property, and the propriety of the respective items, will be passed on before the Referee in partition. Beldock, Acting P.J., Kleinfeld, Christ, Pette and Brennan, JJ., concur.