Sidor som bilder
PDF
ePub

ARTICLE 14.

(Article added by L. 1920, ch. 930, in effect April 15, 1921.)

ACTION FOR DOWER.

SECTION 460. Limitation for action for dower.

461. Necessary defendants.

462. Who may be joined as defendants.

463. Actions; where defendants claim in severalty.
464. Damages to be recovered; how estimated.

465. Damages; in action against alienee of husband.
466. Damages; where several parcels are affected.
467. Damages apportioned between heir and alienee.
468. Action barred by assignment of dower.
469. Collusive recovery not to prejudice infant.
470. Complaint.

471. Interlocutory judgment for admeasurement.
472. Dower, how admeasured.

473. Report thereupon.

474. Setting aside report.

475. Fees and expenses.
476. Final judgment.

477. Plaintiff may recover sum awarded; court may modify judgment.
478. Junior incumbrancers; not affected by admeasurement.

[ocr errors]

479. Appeal not to stay execution, if undertaking is given.

480. Plaintiff may consent to receive a gross sum.

481. Defendant may consent to pay it; proceedings thereupon.

482. Interlocutory judgment for sale.

483. Direction that a part be laid off.

484. Liens to be ascertained.

485. Satisfaction or protection of lien.

486. Payment of taxes, assessments and water rates out of proceeds. 487. Report of sale.

488. Final judgment upon confirming sale.

489. Damages against grantee of premises subject to dower.

490. Certain provisions made applicable.

491. Action for ejectment by reversioner or remainderman after determination of particular estate.

§ 460. Limitation of action for dower.

An action for dower must be commenced by a widow, within twenty years after the death of her husband; but if she is, at the time of his death, either:

1. Within the age of twenty-one years; or

2. Insane; or

3. Imprisoned on a criminal charge, or in execution upon conviction of a criminal offence, for a term less than for life;

[ocr errors]

!

The time of such a disability is not à part of the time limited by this section. And if at any time, before such claim of dower has become barred by the above lapse of twenty years, the owner or owners of the lands subject to such dower, being in possession, shall have recognized such claim of dower by any statement contained in a writing under seal, subscribed and acknowledged in the manner entitling a deed of real estate to be recorded, or if by any judgment or decree of a court of record within the same time and concerning the land in question, wherein such owner or owners were parties, such right of dower shall have been distinctly recognized as a subsisting claim against said lands, the time after the death of her husband, and previous to such acknowledgment in writing or such recognition by judgment or decree, is not a part of the time limited by this section. (Added by L. 1920, ch. 930, in effect April 15, 1921.)

Derivation: Code of Civil Procedure, § 1596.

§ 461. Necessary defendants.

Where the property, in which dower is claimed, is actually occupied, the occupant thereof must be made defendant in the action. Where it is not so occupied, the action must be brought against some person exercising acts of ownership thereupon, or claiming title thereto, or an interest therein, at the time of the commencement of the action. (Added by L. 1920, ch. 930, in effect April 15, 1921.)

Derivation: Code of Civil Procedure, § 1597.

§ 462. Who may be joined as defendants.

1. In either of the cases specified in the last section, any other person, claiming title to, or the right to the possession of, the real property in which dower is claimed, may be joined as defendant in the action.

2. The people of the state of New York may be made a party defendant in an action for dower where the people of the state of New York have an interest in or a lien upon the lands affected thereby, in the same manner as a private person. In such a case the summons must be served upon the attorney-general, who must appear in behalf of the people. But where the people of the state of New York are made a party defendant, as herein provided, the complaint shall set forth, in addition to the other matters required, detailed facts showing the particular nature of the interest in or the lien on the said real property of the people of the state of New York and the reason for making the people a party defendant. Upon failure to state such facts the complaint shall be dismissed

as to the people of the state of New York. (Added by L. 1920, ch. 930, in effect April 15, 1921.)

Derivation: Code of Civil Procedure, § 1598.

§ 463. Actions where defendants claim in severalty.

In an action to recover dower, in a distinct parcel of real prop erty of which the plaintiff's husband died seized, or in all the real property which he aliened by one conveyance, all the persons in possession of, or claiming title to, the property, or any part there of, may be made defendants, although they possess or claim title to different portions thereof in severalty. (Added by L. 1920, ch. 930, in effect April 15, 1921.)

Derivation: Code of Civil Procedure, § 1599.

§ 464. Damages may be recovered; how estimated.

Where a widow recovers, in an action therefor, dower in property, of which her husband died seized, she may also recover, in the same action, damages for withholding her dower, to the amount of one-third of the annual value of the mesne profits of the property, with interest; to be computed, where the action is against the heir, from her husband's death, or, where it is against any other person, from the time when she demanded her dower of the defendant; and in each case, to the time of the trial, or application for judgment, as the case may be; but not exceeding six years in the whole. The damages shall not include any thing for the use of permanent improvements, made after the death of the husband. (Added by L. 1920, ch. 930, in effect April 15, 1921.) Derivation: Code of Civil Procedure, § 1600.

§ 465. Damages in action against alienee of husband.

Where a widow recovers dower, in a case not specified in the last section, she may also recover, in the same action, damages for withholding her dower, to be computed from the commencement of the action; but they shall not include any thing for the use of permanent improvements, made since the property was aliened by her husband. In all other respects, the same must be computed as prescribed in the last section. (Added by L. 1920, ch. 930, in effect April 15, 1921.)

Derivation: Code of Civil Procedure, § 1601.

§ 466. Damages where several parcels are affected.

The last two sections do not authorize the recovery, against a defendant who is joined with others, of damages for withholding dower, in any portion of the property not occupied or claimed by him. (Added by L. 1920, ch. 930, in effect April 15, 1921.) Derivation: Code of Civil Procedure, § 1602.

§ 467. Damages apportioned between heir and alienee.

Where a widow recovers dower in real property aliened by the heir of her husband, she may recover, in a separate action against him, her damages for withholding her dower, from the time of the death of her husband to the time of the alienation, not exceeding six years in the whole. The sum recovered from him must be deducted from the sum, which she would otherwise be entitled to recover from the grantee; and any sum recovered as damages from the grantee, must be deducted from the sum, which she would otherwise be entitled to recover from the heir. (Added by L.

1920, ch. 930, in effect April 15, 1921.)

Derivation: Code of Civil Procedure, § 1603.

§ 468. Action barred' by assignment of dower.

The acceptance, by a widow, of an assignment of dower, in satisfaction of her claim upon the property in question, bars an action for dower, and may be pleaded by any defendant. (Added by L. 1920, ch. 930, in effect April 15, 1921.)

Derivation: Code of Civil Procedure, § 1604.

[ocr errors]

§ 469. Collusive recovery not to prejudice infant.

Where a widow, not having a right to dower, recovers dower against an infant, by the default or collusion of his guardian, the infant shall not be prejudiced thereby; but when he comes of full age, he may bring an action of ejectment against the widow, to recover the property so wrongfully awarded for dower, with damages from the time when she entered into possession, although that is more than six years before the commencement of the action. (Added by L. 1920, ch. 930, in effect April 15, 1921.) Derivation: Code of Civil Procedure, § 1605.

§ 470. Complaint.

The complaint, in an action for dower, must describe the property claimed with common certainty, by setting forth the name of the township or tract and the number of the lot, if there is any, or in some other appropriate manner, so that from the description, possession of the property claimed may be delivered where the plaintiff is entitled thereto, and must set forth the name of the plaintiff's husband. (Added by L. 1920, ch. 930, in effect April 15, 1921.)

Derivation: Code of Civil Procedure, §§ 1511, 1606.

§ 471. Interlocutory judgment for admeasurement.

If the defendant makes default in appearing or pleading; or if the right of the plaintiff to dower is not disputed by the answer, or if it appears, by the verdict, report, or decision upon a trial,

that the plaintiff is entitled to dower in the real property described in the complaint, an interlocutory judgment must be rendered; which, except as otherwise prescribed in this article, must direct that the plaintiff's dower in the property, particularly describing it, bo admeasured by a referee, designated in the judgment, or by three reputable and disinterested freeholders, designated therein, as commissioners for that purpose. (Added by L. 1920, ch. 930, in effect April 15, 1921.)

Derivation: Code of Civil Procedure, § 1607.

§ 472. Dower, how admeasured.

The referee or the commissioners must execute their duties in the following manner:

1. They must, if it is practicable, and, in their opinion, for the best interests of all the parties concerned, admeasure and lay off. as speedily as possible, as the dower of the plaintiff, a distinct par cel, constituting the one-third part of the real property of which dower is to be admcasured, designating the part so laid off by posts, stones, or other permanent monuments.

2. In making the admeasurement, they must take into consideration any permanent improvements, made upon the real property, after the death of the plaintiff's husband, or after the alienation thereof by him; and, if practicable, those improvements must be awarded within the part not laid off to the plaintiff; or, if it is not practicable so to award them, a deduction must be made from the part laid off to the plaintiff, proportionate to the benefit which she will derive from so much of those improvements, as is included in the part laid off to her.

3. If it is not practicable, or if, in the opinion of the referee or commissioners, it is not for the best interests of all the parties concerned, to admeasure and lay off to the plaintiff a distinct par cel of the property, as prescribed in the foregoing subdivisions of this section, they must report that fact to the court.

4. They may employ a surveyor, with the necessary assistants, to aid in the admeasurement. (Added by L. 1920, ch. 930, in effect April 15, 1921.)

Derivation: Code of Civil Procedure, § 1609.

§ 478. Report thereupon.

All the commissioners must meet together in the performance of any of their duties; but the acts of a majority so met are valid. The referee, or the commissioners, or a majority of them, must make a full report of their proceedings, specifying therein the manner in which they have discharged their trust, with the items

« FöregåendeFortsätt »