Martos v. Martos

George N. Berman for plaintiff. Joseph Martos, defendant in person. not deductible expenses, or that expenses must date from the date of collections, under the circumstances in this case. Concluding as I do, that the premises ceased to be a "marital dwelling house"; that love and affection was no longer "mutual", and that defendant owed plaintiff no duty of support after March 31, 1950, I am constrained to find and do decide that defendant is entitled to deduct from the total of all rents collected, all necessary disbursements made by him since that date in connection with the subject premises, and that judgment should be given plaintiff for a sum equal to one half the resulting difference. At the trial before me defendant was not represented by counsel. Over the strenuous objections of plaintiff's attorney, I allowed testimony to be taken of expenditures dating earlier than April 1, 1950. All such testimony is now stricken from the record and will not be considered. Defendant's testimony of expenditures subsequent to April 1, 1950, wholly unsupported by cancelled checks or other receipted vouchers is disregarded without prejudice to defendant to assert such proof, and proof also of other expenditures made by him and not raised at this time, by way of defense, offset or counterclaim in any suit brought by plaintiff in the future, addressed to any calendar period subsequent to September 20, 1954. The items allowed as necessary deductible expenses are identified on the schedule attached hereto and made a part of this opinion.^[*] If, because of confusion attendant on the trial, some of these items were not marked in evidence, they are now so marked with exception to plaintiff. The period considered begins with April 1, 1950, and ends September 20, 1954 (the date of this trial). Also over the strenuous objection of counsel for plaintiff, testimony of the matrimonial history and record in the separation suit above mentioned was allowed and the entire record in the Supreme Court is marked in evidence in addition to the transcript of minutes and the transcript of the testimony of Dr. Donald V. Cooney, since delivered into my hands by plaintiff's counsel. After deducting the sum of $2,334.97, found as necessary expenditures (see schedule attached), from the sum of $2,800 collected up to the date of trial herein, there remains a balance of $465.03 which, when divided, entitles plaintiff to judgment in the sum of $232.52.

SCHEDULE AMORTIZATIONS, INTEREST AND OWNERS' ESCROW ACCOUNT 36 cancelled checks to the order of College Point Savings Bank dated from April 29, 1950, to August 31, 1953. 18 checks for $47.30 each ....................... $851.40 1 " " 51.22 ....................... 51.22 10 " " 48.30 " ....................... 483.00 6 " " 49.30 " ....................... 295.80 1 " " 3.08 ....................... 3.08 _______ $1684.50 WATER, SEWER CHARGES AND ASSESSMENTS 4 Receipted bills with cancelled checks 1 Receipted bill without cancelled check 1950 (after 4/1/50) ............................... $15.00 1951 .............................................. 20.00 1951 (Assessment) ................................. 80.82 1952 .............................................. 20.00 1953 .............................................. 20.00 _______ 155.82 REPAIRS After 4/1/50 By receipted bills without cancelled checks Heating system .................................. $ 4.00 Refrigerator .................................... 32.00 Electrical ...................................... 9.00 Furnace ......................................... 133.00 " ............................................ 46.00 _______ 224.00 PAINTING by receipted bill and cancelled check ............... 180.00 INSURANCE 1 receipted bill and cancelled check and 1 receipted bill without ....................................... $17.50 46.75 ______ 64.25 MISC. all cancelled checks ............................ $9.00 4.75 1.10 2.75 8.80 ______ 26.40 ________ Total deductible expenses .................................... $2334.97 Total Gross Rents ............................... $2800.00 Total Deductible Expenses ....................... 2334.97 ________ Net return .............................. $ 465.03 Plaintiff's half share ............................... $232.52

[*] P. 866, post.