152 N.Y.S. 370 | N.Y. App. Div. | 1915
On February o, 1906, a judgment was entered in a partition action in which the appellant Anna Kopp and her husband were parties., the latter being seized of an undivided interest in the real property parti-, tioned. At that time appellant declined to accept a gross sum in lieu of her then inchoate right of dower and the sum of $34,371.94 was deposited in court to protect said inchoate right. The judgment contained the summary provision that any party to the action might at anytime thereafter ‘‘apply to this court * for such further direction, judgment or order in the premises.” The husband is now dead and appellant’s right to dower has become consummate. She now applies for an order that a gross sum be awarded to her in lieu of her dower right. We think that the motion should have been granted. The fact that she declined a gross sum in lieu of her inchoate right is no reason why her present application should be denied. The fund stands in the place of the land, and her right to a gross sum by way of admeasurement has become absolute. The order appealed from should be reversed, with ten dollars costs and disbursements, and motion granted. Ingraham, P. J., Clarke, Dowling and Hotchkiss, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted.